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Parcel delivery insurance is prohibited under section 57 – Consumer Rights Act – Read about It Here and in The Times.

mercyblue

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Everything posted by mercyblue

  1. mercyblue
    Well myself, Andy and Ford are always going to disagree on this particular issue that's clear. You've chosen a clear course of action wandsworth. Hopefully I have shown that there are some counter arguments that are very likely to be brought up that you should be aware of if I have done that I would feel vindicated. Andy is right the opposing counsel will try and bring the judge round to their way of thinking and it can be very subtle if they are any good. Clearly you've realized wandsworth by your posts that it's not as simple as may first appear. I cant really add anything more without going round in circles apart from this. What are you going to say when in court when the opposing counsel brings up s87 quoting from it that no action can be taken without a dn (I would add if I was doing it that s87 was there to stop precipitous claims and so protect the consumer) I don't expect you to answer that on here was sort of rhetorical but is the sort of thing you need to consider.
  2. mercyblue
    A DN doesn't ask for the full amount it only asks for the missing payments to rectify the default then after the 14 days the dn gives you that's when they can ask for the entire amount. http://moneyaware.co.uk/2011/09/default-notices-what-are-they-and-what-do-they-mean/ I doubt most people are in a position to do much about a dn when they get one.
  3. mercyblue
    Well the case you cite catquest is a housing case so a notice in terms of that is not the same as a dn in terms of the cca, however it does show that statute barred is not as simple as first may appear. All agreements are going to state they need to comply with the legal requirements how could they not? for example hsbc terms "b We may end this Agreement in any of the circumstances set out in Clause 9a, or if you seriously breach the terms of this Agreement (for example, if you do not make repayments on time or at all) and demand repayment of the balance on the Account, in each case we will serve on you any notice required by law." or barclaycard We may close your account and require immediate repayment of your total outstanding balance if we reasonably believe that you’ve broken this agreement regularly or seriously. We may also require this from your estate in the event of your death, if you become bankrupt or if you are likely to become bankrupt. We’ll always follow any legal requirements before we close your account.
  4. mercyblue
    Andy in answer to you. The fact that the defence states the claimant has tried to extend the limitation period by 7 months by the failure to issue a dn till then - your words. What's the point of that ? Would you accept a dn that was issued on the 6th dec no? 6th nov ? no ? 6th oct no? If you say no then clearly the issue of a dn is an irrelevance (despite s87 cca) and you don't accept that a dn is required at all it doesn't matter when it was served. If you say yes an earlier dn would be acceptable then on what timescale are you using? "The Default Noticed was issued 24th November 2009 and served a month after the initial breach thus the cause of action delayed by 1 month and the Limitations period prolonged to 6 years and 1 month which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run." would be equally valid? What about the extreme and put 1 day in the above? If your answer is yes then please explain why you think its possible to circumvent s87 completely. Your defence seems to imply that a dn must be served on the day of the last payment otherwise its extending the sb date ? Perhaps you could clarify that or if you accept there is even a need for a dn? I would have thought my previous post was clear either; a) A dn is required but the timescale of it counts or b) A dn is irrelevant and the sb has already started regardless.
  5. mercyblue
    The issue in this case is whether the dn was issued in a reasonable time. The link Andy kindly provided clearly shows a dn must be served before a case can be brought "Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a)to terminate the agreement, or (b)to demand earlier payment of any sum" That's pretty unequivocal. Furthermore even without that how does the creditor know that it's the last payment till there actually is a missed payment unless they happen to be clairvoyant. Then after that what about letters before action? What about the overriding objective (to avoid court action). What about pre-action protocol? https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#6.1 If it was clear cut barred surely ""The last payment made was 5th Oct 2009 thus according to the limitations act 1980 blah blah etc it became statute barred at the 6th oct 2015 so sod off mr debt collector" would suffice. The last payment was 5th Oct so the creditor becomes aware of the problem on the 6th Nov (how can they possibly be aware before that????) The creditor cant issue legal proceedings on that day that would be completely un-proportionate what opportunity have you had to resolve the situation (could be a genuine mistake after all) none. So the creditor sends you a reminder saying you haven't paid us - if you don't your simply not complying with cpr 1 - a pretty big no no. After that would a final reminder (chance) before issuing a letter before action be unreasonable I don't think so (even the council are legally obliged to send you two reminders before they can issue a summons I know that's different but illustrates my point as to what parliament would seem to consider reasonable I do know that is criminal law. But it does seem to be fairly recognized business practice as well I should know the amount of times I've had final reminders!!). So a default notice acts as a letter before action as Section 14 of the CCA 2006 amends section 88 of the 1974 Act to change the timescales to rectify the default from 7 to 14 days. That gives a minimum timescale from the last payment of a bit under 3 months 2x reminders + dn +14 days to remedy with a few days for postage. Lets not forget all the prerequisites required for an action to be brought must be in place before the sb clock starts the actual time of the breach is immaterial. Of course 3 months on the last payment date would still leave this sb'd anyway. Any thoughts on that Andy after all it was your good self that draughted the defence?
  6. mercyblue
    "3.The Default Noticed was issued 24th May 2010 and served several months after the initial breach thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run." I'm actually relying on the claimant providing me with a signed agreement and valid default notice, the above is all I have. You are going to need a carefully worded WS or you could end up torpedoing your own defence. Using the last payment date as the sb start date (my view that's fundamentally flawed is no secret) so the validity, date of a DN or even if one was issued becomes irrelevant. If you harp on about DN's and their validity, a different date on the DN to the one on the claim etc you're running the risk of agreeing with what will be the claimants position that a DN is required before court action can commence. The first thing I would try to do in court is to try to get you to accept on the need for a DN before a claim could be brought. So I would go through your WS for any mention of DN's and highlight them to the judge to show that you agree on the need for a DN otherwise why would you bother to mention it. Hopefully you can see where I am going here wandsworth
  7. mercyblue
    Maybe but the last payment been april 2014 isn't
  8. mercyblue
    Well I can see why you might come to that conclusion dx, that's never been my intention I only post when I feel I can make a contribution it isn't done for brownie points. If I see a flaw in a argument I will highlight it surely that's the point of this forum. Surely its better that a potential problem should be highlighted before it get to a court room rather than just saying everything is rosy. Take this thread I don't think an sb defence has much chance of success. What do you want people to say we could all agree with you and say well of course it's sb'd the claimant will be thrown out of court without a problem - that;s why they have paid for a fast track case. Please don't try and stifle debate makes the forum merely a mouthpiece for certain peoples views Actually I will start a new thread about SB soon not tonight tho too much wine... sorry that is hijacking this thread sorry!
  9. mercyblue
    No it doesn't with the greatest respect dx seems you don't want anybody to post anything that doesn't coincide with your view
  10. mercyblue
    Well a default on equifax is clearly going to be after an actual DN as a DN gives you the opportunity to remedy the situation and thus there is no default. "Defence does not challenge them on documents or disclosure...its purely a statute barredicon defence." So the whole point of this thread is SB then unless I'm missing something so is completely relevant unless you want to stick your head in the sands.
  11. mercyblue
    Exactly catquest.
  12. mercyblue
    It is relevant in the sense that it shows a DN has to be issued before legal action can be taken. In the template for cc claims on here why is the question has a default notice ever been issued asked? Well its because without a DN (or a defective DN) the creditor cant take any action. Otherwise what is the point of the question its irrelevant. Am sure the same people on here would be (correctly) be saying but the creditor cant take any action they haven't complied with s87 cca. Yet the same people then completely disregard that when it comes to SB that legal requirement suddenly has disappeared. In all this SB stuff not one person has answered my simple question If the SB clock started on the date of last payment how would the creditor ever get the full six years unless the creditor commenced legal action that very same day even though they don't even know its the last payment? 2 days late with your payment sorry we've cancelled your agreement and commenced legal action for the entire amount. Well of course they couldn't do that thanks in part to the cca act just ignoring the act when it suits your purpose is to say the least simplistic. The SB clock can never be the last payment date on a monthly recurring payment date how does the creditor know your going to miss payments? So even if you forget any specific legislation ( cca etc) the creditor would already 1 month into the SB period before they even know its started - they don't know that last months payment was going to be your last.
  13. mercyblue
    "I have been pressuring both Hoist and BarclaryCard via Equifax to prove the default notice" I don't understand that what does equifax have to do with the issuing of a default notice?
  14. mercyblue
    This I would assume is because each party wants it allocated to a different track. Part 26 cpr I think applies here
  15. mercyblue
    I think that would be a very dangerous assumption to make Martin. Usually the rules do make logical sense. Lets take the particular rule here that we're interested in. If you couldn't apply for a default judgement after an aos is filed then clearly all you would need to do is file the said aos to block any chance of a default judgement. That "trick" would rapidly become well known and default judgements would become an impossibility (which you may say is no bad thing ). Clearly this rule is there to stop this happening otherwise you could stitch up the claimants merely by submitting an aos you wouldn't have to bother with a defence it would undermine the entire civil justice system! I have commented on this on aboutsmallclaims. In this case even if a defence is entered now I don't think it stops the claimant applying for a default judgement. The conditions of 12.3 are still met from the rule "the relevant time limit for doing so has expired" Well the relevant time limit has expired. Is it in the interest of justice to accept a defence at this late date, probably but is there some rule you could invoke?
  16. mercyblue
    And how do they reconcile that with part 12.3. According to that all you need to do is submit an AOS never submit a defence (on purpose) then go for a set aside on the fact that you did not indeed ever submit a defence. In fact never mind part 12 what about the overriding objective. "The law states that, if the defendant does not file an acknowledgment of service or defence, the claimant is entitled to ask the court for a default judgment" No it doesn't I'll post it again. 2) Judgment in default of defence may be obtained only – (a) where an acknowledgement of service has been filed but a defence has not been filed; There is no or in that rule, clearly states an aos has been filed but no defence and a default judgement may be obtained
  17. mercyblue
    That's interesting that MCOL will still allow a defence to be submitted.
  18. mercyblue
    But surely Andy that is covered by 12.3(2)a ? so 13.2 is satisfied. 12.3 (2) Judgment in default of defence may be obtained only – (a) where an acknowledgement of service has been filed but a defence has not been filed; I must be missing something here Andy
  19. mercyblue
    Thanks for that Andy, so what is the status of a claim when no defence has been submitted in the correct time frame? It also begs the question why doesn't the claimant apply for a default judgement.
  20. mercyblue
    Can you still submit a defence on mcol once the claim is stayed??
  21. mercyblue
    An early redemption fee is often in the mortgage contract but is just that and normally would expire after the first 2 or 3 years of the mortgage (I think mine was a 6% charge). After that you would just redeem the mortgage for want of a better word "normally". It certainly does look like he has been well and truly done. If he was getting possession letters they will have been adding fees for everything and then some. You really do need that SAR
  22. mercyblue
    I only have one incidence of cabot/morgan that I can be certain of because it was against me (it wasn't mortimor clarke used then) i've just looked it up they were pretty quick to move the initial claim was march and the allocation (to fast track) was received in the october.
  23. mercyblue
    I've had stays lifted nearly two years later.
  24. mercyblue
    Tunz am I right your saying your original mortgage has ended with you still owing 40k so the mortgage co are going for repossession?
  25. mercyblue
    I'm with dx on this one this thread makes no sense! "there solicitors may have advised test the geezer let him get ccj apply for set aside" Are you seriously suggesting that a professional solicitor would advise a client to allow a ccj with an intent to apply for a set-aside on that ccj?

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