marlin/mortimer claimform - YB Credit Card

[diddydicky]

Hi

It would be in your best interest to have a look here before following any advice to accept a termination

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?257032-RBS-Mint-Loan-Court-Action-Started-amp-Dodgy-DN-issues/page13

 

Peter

no one is proposing to suggest accepting UR - its all very well telling a poster that "if" he has a defective DN he may be able to prevent enforcement- some of us go that little bit further and try to ascertain if in fact it will rather than just guess

[Guest unicorn4321]

hi diddydicky and donkeyb

yes they are trying to enforce the debt as well as adding nearly £1500 on for good measure.

 

yes it was in my defence about the faulty dn which i sent in on 23/2/11.

 

they also only sent me a copy of the application form without t and c's which was dated 5 days before they say the agreement started and which was in their poc

the oc also added interest onto the account after sending the dn is that correct

 

i only asked to amend my defence if the claimant provided any more info

thanks

[Guest unicorn4321]

hi dd

it actually says " within 14days of you receiving this notice" will post it up for you to see.

 

peter i would wait to make certain i could accept before doing so that is why i asked the question

 

thanks for your replies

[Guest unicorn4321]

hi dd

here is the dn

 

http://s859.photobucket.com/albums/ab157/unicorn4321/

 

thanks

[Guest]

the required statutory statement says 'before the date shown'! yet, they say 'within 14 days of receipt!

it doesn't seem to comply with para 5b of the 1983 default notice regulations, and there is no paragraph as required by schedule 2 10A of the regs?

maybe 'minor' issues though?

Edited March 16, 2011 by Ford
typ

[diddydicky]

hi dd

here is the dn

 

http://s859.photobucket.com/albums/ab157/unicorn4321/

 

thanks

 

first check clause 7 of the agreement to see if that IS the clause you have defaulted on

 

secondly- and personally- it is a toss up with judges as to whether the DN would be deemed invalid

 

on the one hand it is not in prescribed form

 

on the other the judge could argue the fault de minimus on the grounds that you could actually "Gain" extra time to remedy that DN but stating that you "received it" at a later date than you did

 

its a tight call (IMO)

 

if however they have quoted the wrong clause in the DN as well- then it could be argued that the creditor has been cavalier and shown scant regard for his obligations to serve it "with precission" and that it ought to be ruled invalid

[Guest unicorn4321]

thanks dd

 

i have'nt got a copy of the agreement but will write and get one as the debt has been assigned to hillesden securities will i have to write to them or argos

 

many thanks for your help

[alangee]

Unicorn

 

As you said, it does say "within" 14 days of receiving this notice - which is 13 days, even if you ignore postage - but goes on to say that "if the action required by this notice is taken before the date shown ..." and the only date shown is 21/08/08. As DD says, at the end of the day, it is up to the judge.

 

Alan

[alangee]

Unicorn

 

Has the debt been assigned to Hillesden for collection or have they bought it?

 

Alan

[Peterbard]

Hi

If 14 days have elapsed since the notice was issued then they are fully entitled to take whatever measures the state in the notice. YOU may find the send an other notice before they enforce.

 

Peter

[diddydicky]

Unicorn

 

As you said, it does say "within" 14 days of receiving this notice - which is 13 days, even if you ignore postage - but goes on to say that "if the action required by this notice is taken before the date shown ..." and the only date shown is 21/08/08. As DD says, at the end of the day, it is up to the judge.

 

Alan

precisely- it is a strange notice- and one i have not come across before

 

arguably you are right and it gives only 13 days - also of course it is not as prescribed in that it does not show "a date"

 

the creditor will argue however that the debtor is being pedantic since if for instance he received the DN on a monday- only the debtor knows what day it was received- so he could just as easily send the money to the creditor 15 days later by saying he did not receive it until the wednesday

 

i think it would be almost impossible fore the OP to argue that he did not have sufficient time to remedy and he could only really argue that the notice is not as prescribed

 

the comment in the preceeding post is not really of help to you, it merely expresses and opinion without the p[oster having established the facts of the matter

 

whilst it is true that the creditor can do what he likes- it is arguable that he would be "fully entitled"

 

For instance, if the creditor posts a DN first class on a thurdsay- or before a bank holiday - he will NEVER be "entitled" to take the action noted in the DN after 14 days since it is impossible 14 days from the date of the letter- to have given the debtor 14 days after service (unless of course the credtor serves the DN by hand on the day he wrote it

 

similarly- if you have kept the envelope and can show that it was posted second class- then again the creditor may take the action he threatened 14 days later- but he will not be "fully entitled" to do so - even if you do not have the envelope but make a positive assertion that it arrived with you on a date that is commensurate with in having been posted second class- and the judge is minded to accept you as an honest witness- you could still win the day and show that the DN was invalid since again the creditor would have taken the action within 14 days of the date- whereas you would not have had 14 clear days AFTER service upon you

 

is it too much to hope that you still have the envelope?

 

looking again at the DN - is this it? ONE PAGE? if so you are in luck as it it missing important prescribed text!

Edited March 16, 2011 by diddydicky

[Peterbard]

Hi

 

No enforcement action as taken place yet, has the op taken the extra time to remedy and pay up.

Will the court care that the notice is not in exactly the right form as long a the main terms are correct.

See Brandon v Amex

 

Peter

[diddydicky]

I am prepared to continue giving advice but will not enter into further argument on the points raised by PB as they are circular

 

you have had his opinion on the DN and you have had mine (plus anyone else who cares to give some advice)

 

in order that the thread does not degenerate into yet another long winded argument on DN's and thus dedtract from what your needs are - you should choose which advice to to act upon in this respect

[Peterbard]

Yes i agree also i am compiling a list of all thise who took this advice here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?280020-Contracts-Termination-Repudiation-and-Rescission&p=3338134#post3338134

 

Please ensure you do not end up on it

 

Peter

[Guest unicorn4321]

hi all

 

dd yes that is all they sent me,no i do not have the envelope and funnily enough it was august bank holiday weekend.

 

alangee hillsden now own the debt,i see what you mean about before the date shown. bit impossible that don't you think

 

btw dd could you tell me what text is missing please

 

thanks to all for answering

[NewToTheFight]

It is the notice about including a letter

I will try to find the specific wording later

[Guest]

]

........could you tell me what text is missing please

 

thanks to all for answering

 

para 10A of Schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (see post #10)

Edited March 17, 2011 by Ford
typ

[Guest unicorn4321]

hi i have to send in my ws

 

i have a faulty dn and the dca have only sent me a copy of the application form

 

if i put in the ws that no t & c,s have been recieved and the reason why will i have to state the relevance of this or can i just inform the judge on the day or can i just attach a document stating the relevant law as below:

 

8. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

9. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

10. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

can i just put that i refer to said document

 

thanks

[nicklea]

A witness statement is your statement of what has happened, it is not the place to be putting lots of legal argument. That should be put in your skeleton argument.

[Guest unicorn4321]

Hi just wondered if someone could look over my ws and give their opinion :

 

Witness Statement of xxx

Claim Number: *******

Exhibit ***1

In the xx County Court 30/03/2011

　

Between:

xx Claimant

And

xx Defendant

_________________________

 

WITNESS STATEMENT

of xx

 

_________________________

 

　

1.I xx am the Defendant in this case, I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. I am a litigant in person.I make this Witness Statement in support of my defence against the claimant.

 

2. I will refer to various documents in this statement,true copies of which are contained within the exhibt marked "xx1"

 

3. On the xxand also on xx( reciepts available) the Defendant requested copies of documents which the Claimant refered to in their Particulars of Claim (copies enclosed page1, 2 and 3 )

 

4. The Defendant believes the Claimant tried to prevent and hinder the process of said documents by their replies and the amount of time it took to honour the request (copies enclosed page1, 2 and 3 ).The Claimant provided some documents posted on the xx, which were requested and recieved by the Defendant on the xx albeit 93 days later.

 

5. The" agreement" which the claimant provided and which his claim is based on is identified as a "xx Application Form" and is dated 6/6/97.(copies enclosed pages 4-7).

 

6..In the claimants Particulars of Claim it is stated the agreement was signed on the xxif that is so the afore mentioned document cannot be the claimed agreement

 

7. Due to work commitments the Defendant would have been unable to sign the "agreement" on the claimed date. therefore it is denied that a credit agreement was signed by the defendant, accordingly, s61(1)(a) was never complied with and therefore pursuant to s65(1) and s127(3) the agreement is unenforceable and the court shall not make an enforcement order.

 

8 There are also no prescribed terms and conditions contained within the "agreement" as required by The Consumer Credit Act 1974.

 

9.I deny that I have ever received an effective default notice from xx prior to the agreement being terminated.

 

10. The default notice refered to by the Claimant and which was sent on the xxwas in fact invalid (copy enclosed page ,due to the fact it was an Easter weekend (proof enclosed pages 9-10) and delivered 2nd class post unless proved otherwise it would not have arrived at the Defendants address untill xx giving only 8 clear days to remedy the breach.contrary to section

 

11. With reference to the court order datedxxthe Defendant was willing to attend and use mediation and did phone on the xx reguarding this .but was advised that without the valid documents required to establish wether the claiment had a legal case it would return to court.

 

12 The Defendant denies ever receiving or signing for a Notice of Assignment from xxor the Claiment therefore the Defendant requested a true signed copy of the Deed of Assignment to prove that the debt has been lawully assigned and that the Claimant has a right to collect the said debt. The claimant has failed to do so.

 

13The Defendant therefore challenges the Claiments right to monies due

 

the red bits i am not sure about and should i include anything else

 

also i think i have read somewhere on here that the amount claimed should not include any charges

they have claimed the final balance on my credit card and some of that is made up of late and over limit charges .

 

can the oc still charge interest on the account even if they terminated 3 months earlier

 

can and how do i add/calculate my own charges just in case i win

 

many thanks

Edited April 4, 2011 by unicorn4321

[Guest unicorn4321]

bump

 

could someone please look at this

 

thanks