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

[Guest]

afaik, in brandon a subsequent tn was not accepted?

Edited January 24, 2012 by Ford

[gezwee]

afaik, in brandon the subsequent tn was not accepted?

 

Hi Ford

 

The TN was not correctly pleaded [if at all]............

 

iii) Finally, the Judge dealt with the submission by counsel then appearing for Amex (viz., Ms Urell, who did not appear before DJ Gisby but has appeared as junior counsel before us) that the validity of the Default Notice did not matter because the agreement could have been terminated other than by relying on the Default Notice. As HHJ Rutherford put it:

 

" …The problem with that, and she may be right….is that this was not a point that was taken before the District Judge at all…..and therefore ….in considering whether or not to give permission to appeal it is a bit risky of me now to take into account something that was never argued before the District Judge. And, secondly, …..and maybe this is why it was not argued before the District Judge, …if you go down the default notice route then it really does not lie in your mouth afterwards to say, 'Well, we didn't give you 14 days but who cares. We could have done it some other way anyway.' If you decide to go down the default notice route it seems to me that it is certainly arguable that that is a route by which you are bound and which you must follow."

[gezwee]

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

Link above for reference.....

 

Gez

[Guest]

that's what i mean. where a dn is applicable then any subsequent 'alternative' notice would not be applicable/acceptable. unless, perhaps, where the party accepts such notice? (just posing the q )

Edited January 24, 2012 by Ford

[gezwee]

unless, perhaps, where the party accepts such notice? (just posing the q )

 

That's the one .......... but, it's gambling on the dj's interpretation

 

Gez

[PGH7447]

OK in plain English please - is it a good idea to accept the TN or not? - I am not really bothered either way, as far as I see it, they proceeded to court citing a DN in the POC, a DN they either never had nor have got now, hence the TN served the other day, to my mind and correct me if I am wrong they have abused the due process by this action, case I think for a strike out.

[DonkeyB]

Don’t think it’s as simple as a yes or no.

 

To rely on the termination notice, they would have to change their pleadings to remove any reference to the DN, which would need your permission (which you would refuse) or the permission of the court.

 

As gezwee implies, Brandon is a bit of a red herring – the judge simply said they could not change horses at that very late stage, but intimated that an earlier repleading would have been enough.

 

So do you think they are likely to change the plea? They are likely as not to get permission from the court, IMO, even if you refuse.

 

So I would expect them to wait until the TN is effective, then apply to lift the stay with a change of pleadings and an application for summary judgment. There’s my prediction. So maybe that’s what you have to counter. The best counter may be applying for a court order that they produce the DN relied on in the pleadings, failing which the case is struck out.

 

However, as the TN gives considerable notice, you do not have to deal with it just yet. I’m not sure there is any requirement for you to accept or deny it, except in any defence. So worth seeking more opinion.

 

Just going to read back through your thread...

[PGH7447]

cheers DB

[GAVBU28]

Goodness me this is getting complicated, I guess thats ING's plan....

[PGH7447]

they have a plan - doubtful, you have to be intelligent to have plans - LOL

[GAVBU28]

I guess you're right

[gezwee]

Don’t think it’s as simple as a yes or no.

 

To rely on the termination notice, they would have to change their pleadings to remove any reference to the DN, which would need your permission (which you would refuse) or the permission of the court.

 

As gezwee implies, Brandon is a bit of a red herring – the judge simply said they could not change horses at that very late stage, but intimated that an earlier repleading would have been enough.

 

So do you think they are likely to change the plea? They are likely as not to get permission from the court, IMO, even if you refuse.

 

So I would expect them to wait until the TN is effective, then apply to lift the stay with a change of pleadings and an application for summary judgment. There’s my prediction. So maybe that’s what you have to counter. The best counter may be applying for a court order that they produce the DN relied on in the pleadings, failing which the case is struck out.

 

However, as the TN gives considerable notice, you do not have to deal with it just yet. I’m not sure there is any requirement for you to accept or deny it, except in any defence. So worth seeking more opinion.

 

Just going to read back through your thread...

 

Evening Db..... and thank's for taking a look

 

It's certainly muddied the waters.......and I'm in agreement with you on a possible repleading if PGH rested on the TN.

 

I 'think' the TN would be guinea pig territory for PGH and something I would not honestly relish testing....... although it's the logical route, it does gamble heavily on the dj.

 

Gez

[PGH7447]

I could always sar capital one for the original DN, but who is to say that they have it and if they did would I get the original:!:, could be a waste of £10

 

or maybe

 

I will wait until the time for me to receive the AQ has passed then go for strike out on grounds of them stating that the claim was based on the NoA and DN, which they do not have, the NoA is something they have gobbled together and is not from either Robinscum or cap 1, and they obvioulsy do not have the DN, therefore they have started litigation without due cause. assuming I do not recieve an AQ, which at the moment, judging by them sending the TN seems unlikely

 

I see my persistant single guest is still here

[gezwee]

I could always sar capital one for the original DN, but who is to say that they have it and if they did would I get the original:!

 

Probably not, but there's no requirement to retain the original

 

or maybe

 

I will wait until the time for me to receive the AQ has passed then go for strike out on grounds of them stating that the claim was based on the NoA and DN, which they do not have, the NoA is something they have gobbled together and is not from either Robinscum or cap 1, and they obvioulsy do not have the DN, therefore they have started litigation without due cause. assuming I do not recieve an AQ, which at the moment, judging by them sending the TN seems unlikely

 

Does make you wonder if it's an attempt to cover all bases...... if they come up against a good defence and discontinue on the DN, they could come back at a later date on the TN.... I'm pretty sure they'll get the OK from the dj to get them round part 38.

I see my persistant single guest is still here

 

Me thinks you should draw up a list of all possible angles they could use and weight your gameplan accordingly.

 

Gez

[PGH7447]

Me thinks you should draw up a list of all possible angles they could use and weight your gameplan accordingly.

 

Gez

 

Yep think I will and just to make sure, it wont be made public, so stand by your PM box:-)

[rockwell304]

I see my persistant single guest is still here

 

Hi PGH, your guest in this instance may have been me! forgot to sign in!

Good luck with this......aggressive little feckers aren't they!

[PGH7447]

Brig

 

Here is the relevant bit from their letter before action

 

The full amount owed by you under the agreement referred to above to Capital One Bank was assigned to Robinsonway ltd with effect from 24/xx/20xx. As a result of this assignment, the full outstanding balance owed by you is due to Robinsonway ltd immediately. Rpbinsonway Ltd has appointed IND Ltd to collect this balance on its behalf.

 

goes on with loads of legalese ways to pay blah blah - including a Credit Card method (naughty)

[fred12345]

Brig

 

Here is the relevant bit from their letter before action

 

The full amount owed by you under the agreement referred to above to Capital One Bank was assigned to Robinsonway ltd with effect from 24/xx/20xx. As a result of this assignment, the full outstanding balance owed by you is due to Robinsonway ltd immediately. Rpbinsonway Ltd has appointed IND Ltd to collect this balance on its behalf.

 

goes on with loads of legalese ways to pay blah blah - including a Credit Card method (naughty)

 

The same as mine!.. I do have a few extra words at the start ; " Bank has assigned to Aktiv Krapital First Inv. LTD " then goes on the same ol' way.. not as others that have posted on CAG who are directly assigned to IND - our's clearly not assigned to them.

Even write the cheques out to them (like as if they'd give it to Ak Krap if I did!!) Dodgy I must admit.

 

A quick check on OFT guildlines, it states that "Examples of unfair practices are as follows - using more than one debt collection business at the same time..."

Well Ind is a debt collector and so is Ak Krap, this could be interesting in court!! (if it makes it)

So what makes IND think they have the right to claim a debt they don't own.. LOL

[PGH7447]

exactly, in the POC they cite the NOA and DN, the NOA is clearly not worth the paper it is printed on and they dont have a DN, they have now realised this and sent me a termination notice,

[fred12345]

Mickey mouse outfit they clearly are.. just makes you wonder if they have had a successful court case as yet!

[PGH7447]

only with people who dont know their rights, thats how these DCA's survive

[fred12345]

I'm guessing that in our's and a few other cases like this, the current DCA are the ones still assigned to the debt - and should of never of passed on our personal details of the account to anyone...

I'm wondering what OFT would make of this - especially with Ak Krap, they just recently beed fined shed loads for unfair practices.

[PGH7447]

Im going mad, this is my thread, so Capital One has asked me to discontinue again, sent them reasons for why I wont, now we will see what happens

Edited January 30, 2012 by PGH7447
deleted post contents

[PGH7447]

Well the 11 February and still no AQ, seems that this claim maybe stayed, will check with the court on Monday - So are these muppets all threats and no action - usual DCA crap it seems

[GAVBU28]

Well the 11 February and still no AQ, seems that this claim maybe stayed, will check with the court on Monday - So are these muppets all threats and no action - usual DCA crap it seems

 

Fingers crossed on that one PGH7447, plenty of us in the same boat it seems.

 

Its clear they're using the courts to scare people into paying, I can see a slap on the wrist coming their way if they continue down this route for much longer.