IND/Hagerty - ** Court Papers Issued MBNA card ** / ** WON WITH COSTS **

[gezwee]

Only if sct and the court has no issues with your conduct........ I'm sure your conduct will be exemplary though

 

Really can't see it's in their interest to protract this, if you can hold it to sct at allocation that should be about the time they'll crumble. No commercial benefit spending 2k resisting a 1.2k claim with no costs award......... even this lot won't be bloody minded enough to cut their own noses off.

 

Gez

[havinastella]

You won't lose as Cap One will PAY up! They take it right to the edge and then pay everything. They cannot afford a ruling against them.

 

Jogs

[PGH7447]

I'm Convinced, will do the respond to their defence on Saturday and get it off to them, on the other matter with IND and robinscum, still no AQ arrived yet?

[gezwee]

still no AQ arrived yet?

 

Usually served by 14th day after last day defence due in

 

Gez

[PGH7447]

amazing the amount of guests that monitor the IND threads, morning IND how the devil are ya, I am really looking forward to my day in court

[dpick]

Hi PGH I know of 3 cases where Capital one have settled a week before the hearing is to take place my own being one of them.

 

dpick

[PGH7447]

well AQ arrived today for Me versus Capital One

 

and a letter from IND, which does not make any sense to me, here it is word for word

 

Dear Me

 

NOTICE OF TERMINATION

 

We are agents for Robinson Way Ltd (the "Company").

 

We refer to your Visa Card agreement with Capital One Bank Europe plc relating to Visa Card account number xxxxxxxx (the "Agreement").

 

The rights of Capital One Bank under the agreement passed to the Company purusant to an assignment dated xx Setp 200x.

 

The terms and conditions of the Agreement provided for the Agreement to be terminated by giving you notice. On behalf of the Company, we herby give you notice that the Agreement will terminate on 26 March 2012 automatically and without further notice.

 

For your information, at the date of this letter the sum that you owe the company under the agreement is £1xxx.xx which includes arrears of minimum payments of £2x.xx.

 

This notice is served without in any way waiving, and without prejudice to any pre-existing right that the company may have to treat the Agreement as terminated and to recieve payment from you of the sums stated above.

 

signed by something that only uses a tick, and no name

 

IND

 

-----

Thoughts most welcome on this new development

[gezwee]

PGH

 

Unless I'm going mad the regs still apply....... they appear to have filed prior to the event giving cause

 

The termination notice contradicts the cause and appears to be circumventing [contracting out of CCA] due to filing pre termination?

 

Its difficult to see how enforcement could be effective pre termination when either/or must be effective at the same moment in time

 

Gez

 

http://www.legislation.gov.uk/uksi/1983/1561/schedule/2/made

 

Action intended to be taken by creditor or owner

 

 

6. A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

 

(a)to terminate the agreement;

 

(b)to demand earlier payment of any sum;

 

©to recover possession of any goods or land;

 

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

 

(e)to enforce any security;

 

(f)to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date not less than seven days after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

[PGH7447]

nice goobledegook, will read the link later, to be honest getting quite bored with this bunch

[PGH7447]

Now I think I get you gezwee, they have filed in court before allowing a remedy of a so called default notice, which they obviously dont have, so they have stated that they will terminate the agreement on said date even though they have filed for court, or am I missing something?

 

So basically can I strike out their claim for misuse of due process??

[gezwee]

That was my thinking........ tbh I have a feeling this is the result of Brandon v Amex

 

They're not sure of the verasity of the OC's DN so this is their interpretation of s.98 [non default termination].

 

One thing that does spring to mind is surely they must be estopped from this action by representation....... they can't have it both ways?? You could sort of see the validity of this if they'd done both prior to filing claim, just don't see that it's possible after the event.

 

See if you can get hold of Donkeyb or Andyorch in the next couple of days, pretty sure there has to be a case for SO in this

 

Gez

[PGH7447]

but they have already cited the default notice in the POC and refused my CPR31.14 /31.15 request for a copy, so they obvioulsy dont have it therefore they have abused the process by stating in the POC that a default notice was issued, when in fact they cant prove either that it was or was not and if it was, was it valid, we all know that until very recently default notices were often invalid for various reasons, not least the time given to repay

[GAVBU28]

Following with interest, not sure what this lot are playing at here, seems a strange tactic they're adopting.

[gezwee]

I'm with you on that......... just need to get my head around the best way to deal with it.

 

Their POC stated a demand had been made....... to be CCA compliant that demand should be in the form of a DN or TN

 

Their contractual rights aside, they must still comply with statutory duties in exercising any rights.

 

It's pretty clear that the letter is intended as a notice under S.98A(3) [although poorly drafted], the 2 month period of grace is the giveaway. By doing so have they acquiesced to your position that no DN was served?

 

The question is, do you ack the termination in writing and in doing so quote estoppel to their previously stated position as grounds to SO their case?

 

Gez

[PGH7447]

could make it simple for them and send them a Notice of discontinuance, - see if the back out

[gezwee]

You can but try

 

Wonder if they'll actually understand it though, lol

 

Gez

[PGH7447]

98A. Termination etc of open-end consumer credit agreements(3) Where a regulated open-end consumer credit agreement….provides for termination of the agreement by the creditor –(a) the termination must be by notice served on the debtor, and (b) the termination may not take effect until after the end of the period of two months, or such longer period as the agreement may provide, beginning with the day after the day on which notice is served."-- -- so yes they are using the S98A(3) after the event of proceeding to court, will draft them a letter quoting estoppel, and go for strike out

[Guest]

.......This notice is served without in any way waiving, and without prejudice to any pre-existing right that the company may have to treat the Agreement as terminated and to recieve payment from you of the sums stated above.

 

signed by something that only uses a tick, and no name

 

IND

 

-----

Thoughts most welcome on this new development

 

haven't read through whole circumstances so excuse if wrong. but, as gezwee says, it does seem as if they are trying to 'cover' themselves ala amex in brandon case. (but that 'tactic' was knocked back by the appeal court anyway?)

if, however, s98a was applicable, then there would also be a need for s98a(4)(b)&©.

Edited January 23, 2012 by Ford

[DonkeyB]

Subscribing

[gezwee]

Really not sure there's a definitive answer to this.... it's a new one on me and I guess you can only play it as you see it.

 

Whatever happens I believe there should be some acknowledgement of the notice.... again, I think it's poorly drafted but the intention is clear. If you do nothing you'll be hard pressed to draw it into any pleading at a later date.

 

How you go about it is another matter and would probably all be down to semantics..... once you take the position that you're going to use the notice as a defence or bring to bear in SO there's no going back.

 

In accepting the termination you accept that there was a compliant DN, in order for the other side to side-step estoppel they'd have to argue there was no compliant notice and plead with the dj to set aside and give them time to start again. Getting their ducks in a row is, I believe, one of the favourite sayings on here

 

One thing that does interest me is their assertion that there's only circa £20.00 in arrears...... assuming that's not a typo that's a difficult statement for them to move away from once disclosed to the court.

 

Gez

[gezwee]

Right, just read that again and ........ that's a*se about face

 

In accepting the TN you accept there was no DN [it being a 2 month non default notice]

 

In order to release themselves from the effect of estoppel, they'd have to acknowledge the TN was inneffective

 

What a mess, no wonder I'm confusing myself....... you don't think its in the design of their notice do you

 

Gez

[PGH7447]

the arrears amused me too,dont know where they plucked that amount from?

 

Like you say a badly worded termination notice, but what do you expect from a bunch of no hopers, I will ack the TN, but need to think about a suitable response, I mean I have 2 months according to their letter - LMFAO

 

Also they have until the 3 Feb before this is stayed, so they are taking their time to acknowledge my defence, although saying that I will probably get the AQ tomorrow (sods law)

[Guest]

if a dn was actually required (and was not forthcoming or was non compliant), then accepting their recent tn may not be a good idea?

[gezwee]

I think you need to arm yourself with as much mud to sling as possible...

 

'If' you end up going for the SO, they'll need to argue a. their TN was non-compliant/ineffective or b. they had a contractual right terminate.

 

The former [if played on] would put their DN into question, the latter could be shot down with Brandon....... if it's argued well it could prove embarrassing for them.

 

Gez

[gezwee]

if a dn was actually required (and was not forthcoming or was non compliant), then accepting their recent tn may not be a good idea?

 

By accepting the TN you are agreeing that this is a non default termination....... estoppel is effective on the previous DN position. The idea behind accepting the current TN is that you raise the case for SO on the basis that no cause of action was effective at the time of filing.

 

Like I said, once accepted there's no going back

 

Gez