UPDATE Unbelievable "LOADS OF TIME" dave

i hope they dont, i love a good shindig. LOL dave

the court said it was a shambles. "they have been ordered to plead properly" and i have been allowed to ammend accordingly, plus the judge has moved a £400 quid small claims to fast track???????? cab

Hi Iain, and thanx. the notice above is the claimants notice to the court and myself, not from the court to me. PROCEDURE FOR DISCONTINUING 38.3 (1)To discontinue a claim or part of a claim, a claimant must -- (a)file a notice of discontinuance; and (b)serve a copy of it on every other party to the proceedings. (2)The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings. (3)Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance. (4)Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued. RIGHT TO APPLY TO HAVE NOTICE OF DISCONTINUANCE SET ASIDE 38.4 (1)Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL). (2)The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him. the claimant did mention at the summary judgement with regards to counterclaims, and the judge shocked me a bit with his reply. if the court found in the defendants favor regarding s127(3) and (4) as the defendant has stated in his defence, you must give back all the monies paid and s113 you must return the goods. (as in wilson v first county trust) i dont see were a deferndant would need to counterclaim, the court would be compelled to do that, the defendant has provided me with quite a lot of caselaw and you have not. Southern PacificSecurities V Walker and another 7 July 2010. 26. As we see it, in order to succeed in this appeal, the borrowers would have to persuade the court that Wilson v First County was wrongly decided. However, in our opinion it was not. dave

Good Morning Wannabee. 64 million dollar question, well i think i might not need to go for set aside as it may be denied. 1. summary judgement 2. set for trial 3. failing to comply with directions. my research so far tells me that due to 1 and 2, they would need my consent or leave of the court, as for 3, that would gauruntee a set aside if needed. however, if i went for the wasted costs what options would i be left with. dave

Bump

also, the claimant has not complied with the court directions. i wrote to them and copied to the court giving them an extra 14 days to comply, and they still havent complied. would that be enough to have the discontinuance set aside. dave

Does anybody know how to or advise me on how to set aside a notice of discontinuance?????? Also would a summary judgement be classed as a "JUDGEMENT" thus requiring the claimant to seek permission from the court to discontinue. dave

Bump

thanks for the reply rcl, however. would it not be better to set aside the discontinuance. there is more to it than the money i have paid. 1, section 127(3)(4). return of all monies paid. 2, section 113. return of the vevicle or the value 3, section 87. invalid default notice and breach of the terms and conditions 4, section 92. took vehicle from private property 5, put me out of business, ruined my reputation, dave

NOTICE

LETTER

"OK" had a letter of discontinuence, i shall post up a bit later. maybe a "WIN"?????? dave

They can't go on your'e (or even ANY) property and repossess, it is irrelevant how much has been paid, THEY NEED A COURT ORDER (period)

Section 90 (2). Where under a hire-purchase or conditional sale agreement the creditor is required to carry out any installation and the agreement specifies, as part of the total price, the amount to be paid in respect of the installation (the " installation charge") the reference in subsection (l!(b) to one third of the total price shall be construed as a reference to the aggregate of the installation charge and one third of the remainder of the total price.

Thanx BD, i understand what you are saying and i agree with you, however i am getting just a tadd frustrated. Ok,i have many arguments with these (whatever you want to call them) so i'll just Highlight My main Argument.(Briefly) Conditional sale agreement Dated August 2006 (Pre April 2007) Section 60 (1) of the Act. The Secretary of State shall make regulations as to the form and content of Documents embodying regulated agreements. Section 61 (1) (a) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms. Section 65 (1) of the 1974 Act. Provides that an improperly executed regulated agreement is enforceable against the debtor on an order of the court only. Section 127 of the Act. Sets out the powers of the court upon an application for an enforcement order. Section 127(1) of the Act. Provides that the court shall dismiss the application if, but only if. Section 127(2) of the Act. Empowers the court (if it appears just to do so) to reduce or discharge any sum payable by the debtor. Section 127(3) and (4). of the Act. Sets out circumstances in which the court shall not make an enforcement order. The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with. Unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). Section 113 (1) of the Act. Provides (so far as material) that: Where a security is provided in relation to an actual or prospective regulated agreement, the security shall not be enforced so as to benefit the creditor directly or indirectly. My Argument As in Wilson V First County Trust, 2000, 2001, 2003 If the court is barred from making an enforcement order, then the vehicle that provided the security for the agreement cannot be enforced. Return of all monies paid and replace the vehicle or cash equivalent???? (Hope so) However, I was at the time a sole trader, the vehicle was purchased for that purpose and the creditor was fully aware of that at all times. This is were i could do with some “HELP”. What Damages could i go for without being unreasonable.

Thanx Rcl.

REPLIED WITH With reference to your letter dated 14th April 2011, the contents which have been duly noted, 1. I did not agree to a consent order: 2. We do not need to vacate the trial window. 3. We do not need to stay the matter for 3 months. 4. We do not need mediation. 5. I have on many occasions tried to come to some sort of settlement with your client regarding the above agreement, but your client has always insisted I put forward my payment proposals. 6. For example, on the 28th October 2010 District Judge Toombs stayed the claim until 9th December 2010 to enable both parties to attempt settlement. However this did not happen, on the 2nd November 2010, shoosmiths wrote to me informing me, that if I did not put forward my payment proposals within the next 14 days, i.e. by 4pm on the 16th November 2010, it was your clients intention to apply for summary judgement on the whole of the claim. Showing absolutely no intention to settle this matter out of court. 7. What I did agree to was to give you an extra 14 days from 14th April 2011 to deliver your list of documents and witness statement. 8. A Copy of this letter and a copy of your letter dated 14th April 2011, complete with the unsigned consent order have been forwarded to the court along with my pre trial check list. (Which we must complete and return on or before the 20th April 2011

UPDATE The claimant has failed to adhere to the court directions. List of documents had to be done by 1st March 2011. i sent mine in time, they haven't sent theirs. Witness statements had to be done by 20th April 2011. i sent mine in time, they haven't sent theirs. So i gave them a friendly phone call and asked them what was happening. "long story short" i agreed to give them an extra 14 days to comply. Two days later, they sent this.

well, at the end of the day. its not the judge that is paying for it or coughing up huge court costs for the losers (welscum) when wannabe slaps there candy ar$e. who ever thought of "SAVE AS TO COSTS" dave

90.—(1) At any time when— (a) the debtor is in breach of a regulated hire-purchase or a regulated conditional sale agreement relating to goods, and (b) the debtor has paid to the creditor one-third or more of the total price of the goods, and © the property in the goods remains in the creditor, the creditor is not entitled to recover possession of the goods from the debtor except on an order of the court. (2) Where under a hire-purchase or conditional sale agreement the creditor is required to carry out any installation and the agreement specifies, as part of the total price, the amount to be paid in respect of the installation (the " installation charge") the reference in subsection (l!(b) to one third of the total price shall be construed as a reference to the aggregate of the installation charge and one third of the remainder of the total price. (3) In a case where— (a) subsection (l)(a) is satisfied, but not subsection (l)(b), and (b) subsection (l)(b) was satisfied on a previous occasion in relation to an earlier agreement, being a regulated hire-purchase or regulated conditional sale agreement, between the same parties, and relating to any of the goods comprised in the later agreement (whether or not other goods were also included), subsection (1) shall apply to the later agreement with the omission of paragraph (b). (4) If the later agreement is a modifying agreement, subsection (3) shall apply with the substitution, for the second reference to the later agreement, of a reference to the modifying agreement. (5) Subsection (1) shall not apply, or shall cease to apply, to an agreement if the debtor has terminated, or terminates, the agreement. (6) Where subsection (1) applies to an agreement at the death of the debtor, it shall continue to apply (in relation to the possessor of the goods) until the grant of probate or administration, or (in Scotland) confirmation (on which the personal representative would fall to be treated as the debtor). (7) Goods falling within this section are in this Act referred to as " protected goods". 91. If goods are recovered by the creditor in contravention of section 90 (a) the regulated agreement, if not previous terminated, shall terminate, and (b) the debtor shall be released from all liability under the agreement, and shall be entitled to recover from the creditor all sums paid by the debtor under the agreement. 92.—(1) Except under an order of the court, the creditor or owner shall not be entitled to enter any premises to take possession of goods subject to a regulated hire-purchase agreement, regulated conditional sale agreement or regulated consumer hire agreement. (2) At any time when the debtor is in breach of a regulated conditional sale agreement relating to land, the creditor is entitled to recover possession of the land from the debtor, or any person claiming under him, on an order of the court only. (3) An entry in contravention of subsection (1) or (2) is actionable as a breach of statutory duty.

its "ok"

"JOKE"

DEFENCE 1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request. 2. It is not admitted that the Defendant signed an agreement with Barclays Bank T/a Barclays Partner Finance. If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement. 3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since it’s inception. 4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice. 5. The Defendant has no knowledge of the service of a termination notice. The claimant is put to strict proof as to the content and service of any such alleged termination notice. 6. The Defendant has no knowledge of the service of a notice of assignment. Compliant with the provisions of the Law of Property Act 1925, on the alleged account and proof of original service of said assignment to the defendant. The claimant is put to strict proof as to the content and service of any such alleged notice of assignment. 7. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing. 8. The Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award: · The general rule 2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974; 9. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed or at all. 10. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all. Statement of Truth I believe that the facts stated in this defence are true. I am the Defendant. XXXXX

Thanx BD, a bit of a claim magnet "Lol" submitted my defence as below, 1. I, Cab1ne am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by CL Finance Limited. 2. Copy documents supplied by the claimant are enclosed with this defence: A copy letter dated: 23rd September 2010 A default notice dated: 20th February 2010 A notice of assignment dated: 8th July 2010 A statement of account covering: 4th January 2009 to 4th July 2010 3. This amended defence is submitted following the order of Deputy District Judge Maybury dated 18th January 2011. 4. It is noted that the Claimant has failed to comply with the order of District Judge Wall dated 8th October 2010. The Claimant was ordered to serve, among other things: A copy of the “Credit Agreement”. Compliant With the Consumer Credit Act 1974. (“The Act”) Evidence as to service of the notice of assignment. 5. The Claimant has failed to serve these items. These documents are vital to the claim and go to the heart of the issue in this case. Existence of a Written Agreement 6. The absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) of the 1974 Act are not repealed in respect of this alleged agreement and therefore render it unenforceable. 7. The Court’s attention is drawn to the authority of: Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001) Wilson & Ors v Secretary of State for Trade and Industry (2003). Both of which confirm that where a document does not contain the required prescribed terms under the 1974 Act and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced. 8. Further, it is noted that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a), (b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement. (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299). The Assignment of the Debt 9. It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court (Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101). 10. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:- 136. Legal assignments of things in action. (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice. 11. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post: 196. Regulations respecting notices. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. 12. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery). 13. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action. 14. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Assignee can give good discharge. (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824). 15. Finally the claimant must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times. 16. The defendant submits that: It is the obligation of the Claimant to prove all of the above matters. 17. As a result, the defendant respectfully requests that: Pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) the claim is struck out and the Claimant be ordered to pay the defendants costs, to be summarily assessed. Statement of Truth I believe that the facts stated in this statement are true. Full name Mr. Cab1ne Signed________________________ (Defendant)