Womble 72/Northern Rock 29k Debt - Court looming **WON*****.

[mammyslad]

Best of Luck Womble.
ML

[womble72]

Thanks for your support ML

Womble

[pelham9]

Using the figures in your agreement the annual rate of interest that NR are actually applying is 7.738% The APR is the above figure rounded to one decimal place so 7.7%APR is correct. This trick to sqeeze extra interest out of borrowers is almost universal with lenders and in your case nets them around £80 more than an actual rate of 7.7% Interesting but I do not think it helps because the interest rate does not have to be shown in a CCA for this type of loan only for running account loans (eg credit cards). The APR is very rarely the rate that you will actually pay.

[womble72]

Hi Tom/Paul,

How is the draft going for my defence please.

Also one more question the defence you are putting together for me do i need to submit to the courts by the 8th December or do i just take it with me to court when they arrange a date for the claim.

Kind Regards

Womble

[pt2537]

Hi womble, i know tom was drafting the defence, i will ask him if what he has posted is finished

with regards to the actual filing of the defence you need to submit it to the court via Mcol or in a paper document for by the 8th

Mcol does have a limit to the number of letters you can use so its probably going to be that you will have to use a paper format.

im sure tom will get it finished by tomorrow and then its a case of making sure it gets taken to the court or posted using a reliable method

regards
paul

[womble72]

Hi Paul,

Thank you.

Womble

[pt2537]

Hi Womble

ive emailed tom and i will also send him a PM so one way or the other we will get this sorted for you,

regards
paul

[tomterm8]

Hi, womble,

I think the defence I posted earlier should be OK at this stage; we can always flesh it out with witness statements etc if necessary.

There should be instructions in your court claim pack as how to send it by post. if you do so, it is vital to send your letter by special next day guaranteed delivery.

If you have any problems, you can call the court (should be on top right hand corner of the forms). remember to make sure you have a copy yourself

Good luck.

[pt2537]

Thanks for looking in tom

[pt2537]

dont forget to include your case details on the defence womble

i would suggest heading the document like this

In the xxxxxxxx County Court
Claim number

Between

xxxxxxxxxxx- Claimant

and

Womble - Defendant

and i always like to include a statement of truth at the end ,not sure if tom put one on or not but go for something liek this

Statement of Truth


I xxxxxxxxxxx, believe the above statement to be true and factual


Signed …………………

Date

regards
paul

[womble72]

Thanks for the reply Tom.

I will print of the draft you done and i will send it off in the morning to Gateshead county court.

Many Thanks Again

Womble

[womble72]

Thanks Paul,

Do i neeed to put that on a seperate piece of paper.

Kind Regards

Womble

[pt2537]

In the xxxxxxxx County Court
Claim number

Between

xxxxxxxxxxx- Claimant

and

Womble - Defendant

DEFENCE

1. I deny all allegations put by the claimant in their particulars of claim, and put them to strict proof on each allegation.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the account number of the agreement, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.


BACKGROUND TO CLAIM

4 This claim appears to arise from an account I opened on or around DATE

5. During the period in which I operated this account, I encountered significant problems in being able to maintain the monthly repayment. I engaged PayPlan, a debt management company, in order to formulate and manage a Debt Management Plan

6. A Debt Management Plan is an informal arrangement in which any income after the basic necessities for survival are divided in a pro-rata fashion amongst creditors.

7. The claimant is a consumer credit license holder and is required by law to abide by the requirements of the OFT Debt collection guidelines. This guidance is located at http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf , and was updated in 2006.

8. I would bring the courts attention to the following sections of guidance:

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

2.6 Examples of unfair practices are as follows:

…

f. pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so

9. They also regularly called me at work, putting calls through the main switchboard, and placed my job at risk despite me requesting they only contacted me in writing.

10. The OFT Debt Collection Guildelines state as an unfair practice:

OFT 2.2g

ignoring or disregarding debtors' legitimate wishes in respect

of when and where to contact them, for example, shift workers who

ask not to be telephoned during certain times of the day

11. I therefore put the claimant to strict proof that they behaved fairly in demanding full repayment of money when they had a statement of affairs that expressly showed such repayment was not possible.

12. Northern rock is a signatory of the is a signatory to the Banking Code, and has voluntarily agreed to abide by its requirements. It is my belief that abiding by the banking code is an implied obligation of the contract, or that it is enforceable in equity it. The terms of the banking code are laid out at http://www.bankingcode.org.uk/pdfdocs/BANKING%20CODE.pdf

13. I would like to refer to the section on Financial Difficulties set out in
point 14

14.1 We will consider cases of financial difficulty sympathetically

and positively. Our first step will be to try to contact you to discuss the matter.

14.2 If you find yourself in financial difficulties, you should let us know as soon as possible. We will do all we can to help you to overcome your difficulties. With your cooperation, we will develop a plan with you for dealing with your financial difficulties and we will tell you in writing what we have agreed.

14.3 The sooner we discuss your problems, the easier it will be for both of us to find a solution. The more you tell us about your full financial circumstances, the more we may be able to help.

14.4 If you are in difficulties, you can also get help and advice from debt-counselling organisations. We will tell you where you can get free money advice. If you ask us to, we will work with debt-counselling organisations, such as Citizens Advice Bureaux, money advice centres or the Consumer Credit Counselling Service. Their contact details are as follows.

….

You should also be aware that there are other companies that charge a fee for managing your debts. It is your responsibility to check the fees that may be charged before asking these companies to act on your behalf.

14.5 If you have debts with many creditors, a debt-counselling organisation may complete a Common Financial Statement (or equivalent acceptable to us) on your behalf, which we will accept as the basis for negotiations with you in drawing up a debt-management plan.

14.6 In certain circumstances we may pass your debt to another organisation or debt-collection agency. We will always choose reputable firms which also agree to follow the Code when arranging repayment.

14.7 In other circumstances, we may sell your debt. We will always choose reputable firms if we do this.

14. I did in fact contact the claimant, and engaged PayPlan (a reputable no fee company suggested by northern rock) in order to negotiate a DMP with the claimant. Payplan and the creditor came to an arrangement on my behalf.

15. I made regular payments, via payplan of the agreed amount in relation to the DMP every month.

16. Despite this agreement, Northern Rock unilaterally decided to end the DMP, and sent me a demand letter for the full sum of money owing. I again sent a current statement of affairs and increased my payments to the point that it caused substantial hardship to me.

17. I therefore believe that the claimant has not abided by the overriding objective in this matter, or in accord with implied terms of the contract

CONFUSION ON THE VALID AMOUNT OF CLAIM

18. There seems some substantial amount of confusion about what the claimant is actually claiming they are entitled to:

18.1 In the court form they claim £28,993.87, and arrears to the extent of 1,130.68

18.2 In the default letter, dated 8 September 2007, the claimant states my indebtedness as £29,029.79, and arrears to the extent of £862.96

18.3 In a demand letter dated 4 October 2007, the claimant states my indebtedness as £29022.79 and arrears to the extent of £862.96

18.4 In a letter dated 15 November 2007, marked as without prejudice in response to a disclosure request on 12 November 2007, the claimant states my indebtedness as £28,969.38 with arrears of £6,379.94


19. Notwithstanding that the letter was marked without prejudice, I do not believe this letter is privileged information since:

19.1 It was written in response to a request under the disclosure requirements of the Civil procedure rules and,

19.2 It includes admissions of a purely of a factual nature, and was not part of any settlement negotiations.

20. I will discuss these issues further in the section marked “Default Notice” below, but notwithstanding that I put the claimant to strict proof as to the amount of any indebtedness.

21. In particular, in the letter mentioned in section 17, the claimant produced a statement of account in which the proper rebate of interest on termination was not given, and it seems clear to me that the claimant has filed a claim based on the entire interest charge of the loan, and not the proper rebate.

22.1 I respectfully refer the court to Consumer Credit (Rebate on Early Settlement) Regulations 1983 (SI 1983/1562) as amended

2 Entitlement to rebate

(1) Subject to the following provisions of this Regulation, the creditor shall allow to the debtor under a regulated

consumer credit agreement a rebate at least equal to that calculated in accordance with the following provisions of these

Regulations whenever early settlement takes place, that is to say whenever, under section 94 of the Act, on refinancing,

on breach of the agreement, or for any other reason, the indebtedness of the debtor is discharged or becomes payable

before the time fixed by the agreement, or any sum becomes payable by him before the time so fixed.

22. Therefore I put the claimant to strict proof as to its right to claim the entire amount of total charge for credit.


DEFAULT NOTICE

23. I will refer in this section to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 1983 No 1561 as amended (“Default Regulations”)

24. Reg (2) of the Default Regulations states the requirement of a default notice

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

(c) statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

25. Reg (5) and (6) of the Default Regulations lay out presentation requirements for a default notice.

26. With regard to the default notice, I would quote paragraph 3 of schedule 2:

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

(c) if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

27 The creditor in the default notice states that In accordance with clause 4 of my terms and conditions, that monthly payments have not been maintained, and that arrears of £862.97 are now outstanding.

28. I deny that I have breached clause 4 of the agreement which states

4. Rebate on Early Settlement

If the outstanding balance of the Total Amount Payable is repaid early you may be entitled to a rebate of charges. Details are available from Northern Rock personal Loans – Selectapost 19, Rotherham, S97 3GD

29. I further put the claimant to strict proof

29.1 that the amount of any arrears is correct and,

29.2 that the amount of any balance on the agreement is correct, and that the failure to include the amount of any rebate in the default notice doesn’t invalidate the said notice under paragraph 8 of the Default Regulations

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

30. I particularly note that the significance of failing to include the rebate in any default / court claim is that under term 5 ii it would enable Northern Rock to charge interest from the date of judgement, not only on the principal sum owing, but also on interest that it would have accrued over the entire life of the agreement.

31. The consequence of a incorrect default notice are laid out in s87(1) of the consumer credit act 1974:

87.

Need for default notice.