Court date 19/09/07 - Compling with the Order??***WON IN COURT***

[diskmandave]

We have taken legal advice and an unenforceable debt is still a debt - absolutely correct, but by their own admission they can't enforce it.

 

Perhaps they should review their legal advisors and register here :grin:

 

Why on earth are they taking this to Court when they admit in writing quoting Section and Verse that the debt is unenforceable???

 

Are they still in default of the CCA request?? If so, Section 78(6) applies too;

 

78(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Regards, Dave.

[FANTASY CHARGES]

This is it.

 

 

We already discussed it a long time ago when Next first sent me this copy and it's nowhere near legit. I don't know where they even get off calling it a default notice to be honest.

 

-It doesnt have their address

-It doesn't have any of the 'if you have difficulty paying' or 'if you don't know what do do now' statements

-Its not specifically dated

 

I could go on

 

 

is this supposed to be the default notice because section 88 of the CCAct 1974(as amended) says

 

88 Contents and effect of default notice

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service [ oops they put the date as APRIL UNLUCKY so theoretically you have an infinite time to respond !!!!] of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

as laistre says their are lots of other requirements of a default notice not there --- check my signature as there should be a couple of links to default notices in their.

now if they have defaulted you the default date will not be the same as on this "alleged" default they cannot simply put april 2007 on your credit report so the data is incorrect and has eventually to come off.

[monopoly23]

Thanks guys.

 

DMD - honestly I don't have a clue why they are taking this to court. I keep thinking they know something that I don't and somewhere along the line, I will simply lose. Whether it's down to an ignorant judge or the fact that they do have something up their sleeve, I just don't have a good feeling about this at all.

 

Fantasy- we never in fact received this so called default notice anyway. If they did send it, it was sent to a previous address and was not forwarded with the rest of our mail, including the actual claim form which was sent later.

I did include some stuff about default notice prescribed terms in my bundle but it was only from the OFT guideline 'Matters arising during the lifetime of an agreement' booklet because I couldnt find the actual regulations.

 

Would I actually be able to quote anything other than what's in my bundle now that it's submitted? They did only give me 2 days to do it.

 

Also, what about the fact that the claim is downright uncalled for? I didnt include anything about harrassment in the bundle. Would all this have to be done in my own claim against them if I made one?

[rory32]

I think their sentence of “Under section 127(3) of The Consumer Credit Act 1974 this debt is therefore unenforceable” is quite important. They know it’s unenforceable and they know exactly why it is unenforceable.

But just in case they try and pull a fast one and muddy the waters with the 2006 Act you may wish to keep this up your sleeve, if you haven't already got it. I think Tom already told you to look it out but I didn't see it in your defence.

 

SCHEDULE 3

 

TRANSITIONAL PROVISION AND SAVINGS

 

11 The repeal by this Act of-

• (a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

• (b) subsections (3) to (5) of that section, and

• © the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

Also, depending on how good you are with photoshop, you may wish to print out a made up statement from Next with the solicitors names on them as they may try to argue that statements are sufficient proof to enforce the debt. This helps to demonstrate to the judge that statements enforce nothing.

 

Best of luck and try not to worry.

[monopoly23]

Thanks rory. I don't know if I understand that quote... is my agreement actually improperly executed if it doesn't even exist?

Also, would I be allowed to quote it even though it's not in my defence already?

 

I googled to death all the things tomterm mentioned but just couldn't find some of them. It just kept coming up with amendments and instruments.

 

I will try that idea with the statements-thanks.

 

My only arguement if all else fails, is that they had no right to charge interest, and from the statements we've got, there's only actually £40 owed for goods bought. I will happily pay that for this to go away lol.

[rory32]

The section that prevents judges enforcing a debt where there is an improperly executed agreement was repealed in the 2006 Act (section 127(3)). Basically what the quote says is that the repeal of this section only applies to agreements that were made after the 2006 Act was implemented. So the repeal doesn't apply in your case as any agreement would have been made under the 1974 Act.

[monopoly23]

But can I include that now when I havent put it in the bundle?

[rory32]

You can include it in case the matter is raised. As I say you may not need it.

[MoonHawk]

But can I include that now when I havent put it in the bundle?

It is the law and from an act of Parliament. I can not see the judge objecting to that. If you are worried, you could print out teh whole thing (too large for my liking) and just mark the sections relevant.

 

Also, depending on how good you are with photoshop, you may wish to print out a made up statement from Next with the solicitors names on them as they may try to argue that statements are sufficient proof to enforce the debt. This helps to demonstrate to the judge that statements enforce nothing.

LMAO. I am very good at photoshop and happy to do one for you

 

Best Wishes

MoonHawk

[monopoly23]

Would you really Moonhawk or is that sarcasm? LOL I don't even have an account!

[MoonHawk]

No I am serious. Pass me the solicitors details

 

Best Wishes

MoonHawk

[MoonHawk]

Although I am not sure I have ever seen a statement on my wifes Next account. Must take a look.

 

Best Wishes

MoonHawk

[monopoly23]

Do you need a copy of the statement? I have the last one they sent.

 

The solicitors are

Howard Cohen & Co. Solicitors

P.O. Box 110,

Cleckheaton,

West Yorkshire,

BD19 4XT

[MoonHawk]

Do you need a copy of the statement? I have the last one they sent.

Yes please. If you can scan it at 300dpi. I'll PM you my e-mail.

 

Best Wishes

MoonHawk

[monopoly23]

Er 300dpi? How do I do that? Ive just clicked scan...

[monopoly23]

Ah no problem it did it automatically

[MoonHawk]

Are you on MSN or yahoo or AIM?

 

I can talk you thought it then.

 

Best Wishes

MoonHawk

[monopoly23]

No Im not. I had a log in ages ago but I cant remember it now.

I was actually meant to go out at 11 this morning lol so I need to go now. I'll only be an hour or so.

 

Ive sent the statement, let me know if you got it and if it's ok before I go than I'll be back on when I get in.

 

Thanks again.

[speedtrip]

The section that prevents judges enforcing a debt where there is an improperly executed agreement was repealed in the 2006 Act (section 127(3)). Basically what the quote says is that the repeal of this section only applies to agreements that were made after the 2006 Act was implemented. So the repeal doesn't apply in your case as any agreement would have been made under the 1974 Act.

 

Rory, thats interesting.

 

so to clarify does this mean that any credit agreements in place prior to 2006 are unenforceable if it can be proven that they were not excecuted properly. For any post 2006 agreements we are basically sunk. As all my disputed agreements are pre 2006 this is in my favour, yes?

[rory32]

As all my disputed agreements are pre 2006 this is in my favour, yes?

Yes.

 

so to clarify does this mean that any credit agreements in place prior to 2006 are unenforceable if it can be proven that they were not excecuted properly.

Not quite. If the agreement was not properly executed but only signed by the debtor and contained all the prescribed terms it would still be enforced by a judge under the 1974 Act.

[tomterm8]

Rory, thats interesting.

 

so to clarify does this mean that any credit agreements in place prior to 2006 are unenforceable if it can be proven that they were not excecuted properly. For any post 2006 agreements we are basically sunk. As all my disputed agreements are pre 2006 this is in my favour, yes?

 

firstly, the relevant section came into force in 2007, not 2006.

 

Secondly, it means the court would be able to enforce the judgement, BUT it would have to take into account any prejudice caused by an improperly executed agreement.

[Having_A_Knightmare]

Hi

 

Good luck monopoly.....

 

Can any one answer this question tho....

 

When it goes to court and the no CCA is mentioned, what else can the judge do.

 

I thought no CCA unenforcable debt??

 

RO

[monopoly23]

Judge's sometimes rule against the evidence though, or lack of it.

Who knows but thanks!

[monopoly23]

Ok so with work and everything else, Im only just getting round to finishing the notes for court tomorrow! I don't mind admitting Im absolutely terrified either.

 

Ive got all the main points written down but I just need someone to clarify some things if thats ok:

 

1. How will this go? Ive never even been in a courtroom so I don't know if it will be like a conversation or a debate or what. If their solicitor says something I don't agree with, do I note it down for when it's my turn or say something straight away?

 

2. Do I shake anyone's hand? I know it sounds funny but court etiquette is not something Im familiar with lol

 

3. What if I need to refer to something that's not in my bundle? Does that matter?

 

Really, I just want some clarification as to what happens in there and the whole process really. Ive read the CPR but it doesn't describe what will actually happen.

 

Id be very grateful to hear advice from anyone who's already been to court

[monopoly23]

Also, do I go right back to the start with this ie the defence? The fact that their POC doesn't even refer to a specific account? I shouldn't even really be defending anything other than their POC should I? They're basically claiming that I owe them money without actually providing any documents that say I do.