hi andy,

i thought s.78 didnt apply to O/Ds (or was easily remedied) due to the part V exemption regarding the agreement? Exactly my point if sec 1 cant be provided then section 6 a is the crux

is the point, that the fact that no letter/agreement was served, mean they are still in breach of s.78 and cannot lawfully enforce, in that case? Absolutley hence the lack of pure overdraft cases

 

one further point, a big effort was made by the barrister that ALL the evidence available was before the court on the day and no further would be brought.

Regards

Andy

thanks for the above andy,

as i see it, the DJ on the day took the terms of a letter advising of the increased overdraft (about demand for repayment, regular payments to the a/c, etc), as the agreement that had been breached in s78 & 98 ss.6, thereby nullifying 78 & 98 ss.1 requirements.

i argued that as the claimant was relying on a DN as part/full termination and demand for repayment, there should be an agreement, on which they can issue a DN in the first place, and furthermore that without sight of the original (or copy thereof) the DN could have contained anything (the example i used was a decimal point in the wrong place). this was shot down by him agreeing with the barrister for the other side, in that it would have taken a catastrophic failure/error in the banks vast, wholly accurate (hmmm), automated systems for there to have been any problems with it at all. indeed the barrister said that it mattered not if the DN had even arrived at my address!!!! all that was reqd was them to have sent it, which 'would have been' first class and the DN 'would have been' compliant to statute and under CPR6.26 that meant next day delivery of a fully compliant DN. he played very hard on the BIG BANK always right, little LIP always wrong scenario.

Its all tosh R&B

No agreement therefore no DN can be issued end of.Not bothered about deemed served tosh either the only way to terminate an overdraft is by way of the 78(1) 98(1) and must allow 7 days notice to enable you to come to an agreement on repayment of monies or rearrange a payment plan,the above benefit was never provided to you and therefore the termination was unlawful.And even if it had been terminated fairly the debt comprises of unfair charges levied to the overdraft unlawfully which the DJ as allowed (is he not aware of the OFT case?) and sided with the Claimants Barrister against an LiP in achieveing a miscarriage of justice.I wouldnt let this go R&B not by a long chalk.

Rant over

Regards

Andy

andy thanks as always,

funnily enough the barrister in question mentioned that he was actually working on the OFT case for the Bank...have to laugh....

rite ok, following on from the above....i need to get together the requirements for an appeal...13 days left in which to do so, to be in time.

could you possibly lay down what is required?

i did not ask for leave to appeal (almost on the advice of the DJ) and, as i understand it, now have to apply to a Circuit Judge. would this seem correct?

i assume i will have to say where i think the DJ erred in Law. the DJ did say i can apply to appeal and then present further paperwork subsequently...

thanks for your time and effort andy

added: N161 looks like the starting pioint?

No problem R&B (time permitting you know howI get dragged away)

Ok not sure if you are subbed to these:-

Stebiz vs. Cabot ***WON ON APPEAL ***

Trying to set aside judgement -How do I amend Statement of Case?

Two ways to look at this you can consider a set a side on the decision and redefend, if it fails you wont have leave of appeal i understand.or the appeal procedure is indeed codified under CPR Part 52. Have a good read of that, especially the Practice Direction PD 52. The application is made by Appellant's Notice in Form N161. You have 21 days from the decision to lodge your Appellant's Notice. I suggest you look through the form and have a good read of the guidance notes at N161A as well.

I will assit you with this R&B but you will have to do most of the ground work im afraid.

Regards

Andy

No problem R&B (time permitting you know howI get dragged away)

 

 

Ok not sure if you are subed to these:-

 

Stebiz vs. Cabot ***WON ON APPEAL ***

 

Trying to set aside judgement -How do I amend Statement of Case?

 

yep....been reading those...be getting on to the court to get a transcript.

 

 

Two ways to look at this you can consider a set a side on the decision and redefend, if it fails you wont have leave of appeal i understand.or the appeal procedure is indeed codified under CPR Part 52. Have a good read of that, especially the Practice Direction PD 52. The application is made by Appellant's Notice in Form N161. You have 21 days from the decision to lodge your Appellant's Notice. I suggest you look through the form and have a good read of the guidance notes at N161A as well.

ok, will spend some time going thru that..

I will assit you with this R&B but you will have to do most of the ground work im afraid.

thanks....just how i like it andy, no point having it all done for u and not having a clue at the coal face!!!

 

Regards

 

Andy

thanks andy i ll get to work.

im of a mind to appeal the decision per se, as if i am successful, if i understand it correctly, it will make it very difficult for them to pursue it further at trial, having in effect been set a precedent.

r&b, I sent you a pm.. did it arrive ok ?

r&b, I sent you a pm.. did it arrive ok ?

sure did cb, i did reply in thanks:)

couple questions....do i have to await the arrival of the order from the judge before i can appeal as its on the appellants notice? also do i need the transcript in with this or am i right in thinking this can follow up to 14 days later along with the other paperwork if necessary? im awaiting the forms from the court regarding transription.

couple questions....do i have to await the arrival of the order from the judge before i can appeal as its on the appellants notice? I would imagine so r&b also do i need the transcript in with this or am i right in thinking this can follow up to 14 days later along with the other paperwork if necessary? Not sure you will need to check on the appellents procedure im awaiting the forms from the court regarding transription.

Regards

Andy

thanks andy,

been a bit under the cosh last week or so with ageing parent probs......will post up wot i can when i can.

firstly apologies for the pointless question above....Alzheimers must be hereditary...lol

ok im getting the transcript sorted...

further on the appellants notice:

here:

http://www.hmcourts-service.gov.uk/courtfinder/forms/n161_0706.pdf

sec.4: i take it i need permission to appeal (this was not sought nor granted at the hearing on the DJs advice)

sec5: any other applications?

sec.6: ive marked 14 days for skelly to follow

sec.7: set aside the order or should i seek a new trial? does this mean its heard by the appeal court or do i get another DJ hearing it?

sec.8: do i need an extension of time or does the 14 days incorporate that?

sec.9: supporting evidence....is this covered by saying skelly to follow or must i list it now?

thanks for any thoughts

further to the above......on procedural points.....does the lack of AQ (not to mention the previous palava) from the claimant allow me any leverage in the appeal?

Hi r&b, I thought it one of the parties did not comply with submitting their AQ then the claim/defence would be struck out. Did they fail to do the AQ completely, or just to provide you with a copy.

Magda

I wasnt aware of that R&B:confused:

As Magda states you mean they never sent you a copy?

They must have submitted their AQ to proceed

Andy

i shall check again, but according to the court when i checked previously, regarding the summary judgment, they had submitted no AQ to the court, certainly not within the time limt.

phoned the court...they were submitted....well before i checked...so the court staff got that wrong then...none served to me however....no shock there tho...

makes sense i guess as u guys suggested.

they cant however tell me what needs to be submitted with the n161 appeal...thats legal advice apparently....covering letter going in with it then

i ll be putting this together tomorrow and over the weekend ready for submission next week....

R&B

Robinwayrobinme as just completed the N161 perhaps you can pm him for the best way to submit it. page 11 post 209

Regards

Andy

Hi R&B

I have been doing a little scouting and came across the following from ICO DP Technical Guidance to filling Defaults.

The account has a debit balance (within or outside overdraft limits) but there have not been any or enough credits to service the debt for at least three months.

Notices to comply with Sections 13.7 of the Banking Code5 and 7.5 of the Lending Code6 should provide adequate warning. A notice of intention to file a default can be sent with a formal default notice served under Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter or relevant account statement, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

When a default occurs in line with the criteria in this guidance, and the lender has given the customer 28 days notice of the intention to file a default, then subject to paragraph 37, the lender may supply this information to a credit reference agency despite no advance warning when the account was opened.

Andy

thanks inded andy....i ll have a good look at that in a min....bit tied at work at mom...

Hi R&B glad to feel that I may be of some help as you kindly helped me in my earlier days here.

Started to read through your thread to get an understanding on whats been happening, I do need to break off for a while, but will look in a little latter and continue. In mean time IMO the most important part to concentrate on is your grounds of appeal as they must accompany N161. You know that you have 21days to file N161 and then skeleton argument within 14days. Also you will need to chase the order/judgment you are appealing as a copy of this needs to be included in your appeal docs. Trasnscript of judgment also needed, but you can still file without it provided it has been ordered and listed as coming later with a time estimate.

I'll go through more later. PLease tell me if i'm giving you info you already know.

Back later.

Robin

hi robin,

thanks for taking the time and effort. looks like im in for late one at work so may have to pick it all up tom when i have time. please dont worry abt going over anth again it all helps keep it at the forefront so to speak.

cheers r&b

Hi R&B

Just finished reading your thread... stitched up comes to mind. Justice!! it does make you wonder, doesn't it?

Tried to find the direct source but can't find it now (needle in haystack). The following should be of help in completing Apppelants Notice and Appeal Document bundle.

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=13399&stc=1&d=1255723701

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=13398&stc=1&d=1255723701

To reiterate. IMO the most time consuming and important thing needing to be done in the 21 days after order/judgment being appealed is the grounds of appeal. Mine can be found here http://www.consumeractiongroup.co.uk/forum/legal-issues/212396-trying-set-aside-judgement-9.html#post2437163

The N161 is quite straight forward, obviously I found above attachmnets very useful. You would use the same form to seek permission to appeal. I'd guess you have already checked out which court to appeal to, which I believe would be the county court where the original hearing took place if it was a DJ making the judgment being appealed. The appeal would be before a Circuit Judge. Important things to consider at moment apart from grounds of appeal are.

1. Chase court for order being appealed as this must accompany appeal.

2. Get ball rolling to get a transcript of judgment. Form for tape transcription request is EX107. Court will supply this form and list of transcription companies. They should also give you a list of maximum rates, if not let me know and I'll scan mine. This does not have to accompany N161 when filed.

3. Start putting together your document bundle now as that has to accompany N161 when filed.

Must admit I have found the court treats you differently when your a LiP making an appeal and its not for the better, so do need to chase the

them for everything and make sure they do what they should do within time limits as an example when I filed appellants notice with copy for respondent, I had to chase them to seal it and serve respondent within time limits(they didn't know).

As recomended by Andy, CPR 52 and it PD will be good reading.

Probably enough for you to be getting on with, but I'll keep looking in and any help I can give along the way, just ask.

Robin

Appeal Bundle204_0709_e.pdf

How to complete Appellants Notice203.pdf

hi robin,

thats excellent thanks vm that will save me a lot of time and effort appreciate it.