Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
Back to Court after Set Aside - HELP PLEASE**WON**
Hi all, I am hoping for some assistance with this situation which has got way to complicated and in-depth for me to deal with on my own.
In summary,
Got into difficulties with Credit Card due to illness and they refused to accept nominal payments of £1 per month.
Passed to Incasso and claim issued on 20/12/07. The POC were very vague, ‘the claim is for monies due under an agreement regulated by the CCA 1974 and the claimant claims £xx,xxx’. (if only I knew then what I know now!)
Judgement for the claimant followed for payment of £1.00 per month (due to severe deficit situation shown on my admission - as advised by CCCS)
Claimant applied for re-determination and despite protests obtained judgment forthwith as they calculated it would take a 1000 years to repay and this was not reasonable. - despite the fact that I had £400 a month more going out than in
Claimant obtained an interim charging order.
Requested CCA and received a signature document that does not contain 2 of the prescribed terms. See attachment
I made an application to set aside. This was consented by the claimant (who changed solicitors to Cobbets prior to this), Charging Order was dismissed.
Allocation questionnaires sent out. Both sides requested a 1 month stay. I also requested allocation to small track on the basis of cost.:-|
In an effort to reach settlement I have tried to discuss claim with claimants solicitors. They have sent me Rankine judgement which they said they would rely on and what they claim is the back of the CCA containing the prescribed terms. It is totally unreadable. See attachment. (this is as good as gets this is a 300dpi scan looks better on screen than on paper)
I have written to them twice explaining my position and my arguments against their case and that I would be happy to discussed an agreement, providing they can provide the correct documentation. They do not respond. They say the period to negotiate the settlement during the stay is for me to make an offer, nothing else.
Today I called them and they informed me that they intend to proceed with the claim, that despite my disagreement the Rankine judgement is very relevant (I cannot find anything in Rankine about prescribed terms and unenforceable agreements due to lack of them which is the only basis for my defence at the moment). Under questioning she said that they did not have to provide an original document (as I contended) of the CCA (as it does not exist – she has admitted this and it is recorded) and if it is considered reasonable not have the original document due to the passage of time etc then a sworn witness statement/testimony confirming that the illegible blob is in fact the back of the signature document is sufficient. She states that the only info she is waiting on is a better quality copy of the prescribed terms from the back of the form (allegedly).
I have to admit I am very nervous, the idea of Fast Track and associated costs, going up against these guys who do seem to know what they are talking about (for a change) with my limited knowledge and experience. Maybe I should give up and try and agree a monthly payment plan. At least I don’t have a CCJ from these anymore?
Can I request a more detailed POC at this late stage. Can I do a CPR request. Should I request site of original doc under CPR? I will need to submit another Allocation Questionnaire after the stay has expired (in 10 days), can I submit a more detailed defence at this point. So many questions and not many answers.:idea:
Professor Sir Roy Goode Qc in his Consumer Credit Law and Practice publication makes it very clear that the prescribed terms must be within the agreement not is a secondary document titled terms and conditions
so if they cannot show that the prescribed terms ARE in the agreement they are in trouble
Professor Sir Roy Goode Qc in his Consumer Credit Law and Practice publication makes it very clear that the prescribed terms must be within the agreement not is a secondary document titled terms and conditions
so if they cannot show that the prescribed terms ARE in the agreement they are in trouble
Thank you Paul, is he available sometime towards the end of September or is that publication available from Smiths.
BTW your cartoon made me snort outloud, I think the wife thought I was having a stroke!
So, if I read this correctly, you're at the stage of defending the original claim from them?
I guess in essence yes, although procedurally I'm not sure how it works as judgement has already been set aside and we are currently in this 1 month stayed period. The judge ordered that the documents I submitted with my set aside application be entered as my defence. I guess if I want to change this I will need the courts permission. The basis of this document is below as cobbled together from bits and bobs on CAG.
Evidence in support of Application to Set Aside Judgement dated xx
1 – 3 were my reasons for requesting set aside based on my health problems and the defence I would enter below – the court ordered this be entered as my defence.
4. On 21/04/2008 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.
5. On 2nd June 2008 (43 days later) the Claimant has provided the defendant with a document (attached and marked EO2) which he claims is a true signed copy of the regulated credit agreement relating to his claim. It is my contention that this agreement is entirely unenforceable as a result of not providing any of the terms prescribed by the 1974 Consumer Credit Act.
The document upon which the claimant is relying upon to bring this action does not contain the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.
6. I also wish to draw to the courts attention the fact that where an agreement does not have the prescribed terms as stated above it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.
7. I have taken time to read the Wilson and FCT judgments referred to in my original defence starting with the Judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION. In this case Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999 was void and unenforceable.
I feel a key point at Para [26] in Sir Andrew Morritt’s judgment is this;
“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”
It is my contention that this is the case here with the agreements with the claimant, I also note that the House of Lords did not reject this idea and reaffirmed much of Sir Andrew Morritt’s judgment including this part of the ruling.
In addition, It is clear that parliament considered the fact that where a creditor failed to comply with the requirements of s60 and 61of the Consumer Credit Act 1974 they would stand to lose any monies loaned and that penalty was correct.
The Consumer Credit Act is a protective Act implemented to give consumers a level of protection and set out minimum requirements for contracts between creditors and debtors, it does not say that where a credit fails to comply with the law and the debt becomes unenforceable they can cause damage to the debtor by defacing their credit file, no court has also held this to be the case either and I am sure parliament would have stated in the act if it was to be the case that the creditor had any such rights when in non compliance.
8. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29
" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."
10. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's judgement should be set aside.
Statement of Truth
I, xx, believe that the facts stated in this witness statement are true
Signed ......................... .......................
As you know they are going to rely on the Rankine case [what luck-they couldn't have picked a worse example] it would be advisable to put your counter arguments in your POC.
You might be best to avoid criticising the Judge in that case, but cite other, more eminent Judges on the same topic to blow their arguments out of the water.
For instance you can read this case involving Lord Justice Clarke- McGinn v Grangewood Securities Ltd. [2002] EWCA Civ 522 (23rd April, 2002)
I got that from British and Irish Legal Information Institute and you can try findinG other cases by using different key phrases [ldefault notice consumer credit act]
the court should send you and order outlining what you have to do, when was the hearing? if it was recent its likely that the order will drop through your letterbox soon
I would also focus on the fact that while there are no prescribed terms, you have also and more importantly so as not to seem like a debt avoider, not been afforded the statements of rights and protections which the CCA 1974 was designed to afford to debtors. the scheme of the legislation was to promote transparency and clearness in lending and to protect the consumer from unfair and rogue lending
so this is something which you need to keep in mind
The last communication from the court was a N24, stating that 1) the judgement was set aside 2) the itermim charging order discharged 3)the defendants documents (see above post #9) be treated as his defence 4) Allocation questionaire to be dispatched forthwith.
Both parties returned the AQ and requested a month to settle. This has been a very one sided process.
Then another N24 - Standard order for stay for settlement which says that it is stayed until 5th Sept. and by 16th Spet. we must either notify the court it has been settled or request and extension of the stay and explain what progress towards a settlement has been made OR file a completed AQ described which items settlement has been reached on.
All other relevant info and questions I hope should be clear in the posts above. If not please just ask for clarification.
You raise a very good point about debt avoidance. That is absolutely not me. This is something that I have discussed at length with my wife and family and as such I prepared a statement to the court as to my position on this moral question should I ever be asked (as 1 DJ sort of in a roundabout way did).
The basis of it is this..many years ago I entered into an agreement with a bank for them to lend me money and me to repay with interest based on the regulations of the CCA. After 8 years I fell ill, couldn't pay, offered an amount that I could afford until I got sorted out. They refused. They passed to a DCA, they refused. They took me to court, the court agreed I what I could afford, they objected, the court court changed their mind. As I couldn't pay the whole amount they put a restriction on my house, I objected. All of the time they quoted the law and said it was their right. I needed to protect my security and my home for me and my kids. I fought back, I educated myself, I discovered that the law offered the consumer protection too. The law is the law. If I had been treated fairly and with respect and consideration for my illness I would never have turned to legislation to seek the protection that today I find it has offered me.
Pay it Forward! If someone helps you, help someone else in return!
Posts
307
Re: Back to Court after Set Aside - HELP PLEASE
Originally Posted by pt2537
Professor Sir Roy Goode Qc in his Consumer Credit Law and Practice publication makes it very clear that the prescribed terms must be within the agreement not is a secondary document titled terms and conditions
so if they cannot show that the prescribed terms ARE in the agreement they are in trouble
I think I'm in love.. all these books you keep referencing that I want to go and find
However, as for Professor Goode,
"The leading text on this area is Professor Goode's Consumer Credit: Law and Practice which spans more than five loose leaf folders which means an answer can be difficult to find. "
I think I'll leave that one behind
When you've had all the help you need, make sure you stick around to help others too!
Just think, if everyone left the site after they'd got their help, there might not be anyone left the next time YOU come back needing more assistance!!!!!!!
I think I'm in love.. all these books you keep referencing that I want to go and find
However, as for Professor Goode,
"The leading text on this area is Professor Goode's Consumer Credit: Law and Practice which spans more than five loose leaf folders which means an answer can be difficult to find. "
I think I'll leave that one behind
you can find it in any law library and it is truly an excellent and authoritative piece of work
Ok after hours & hours of reading I've decided not to through in the towel just yet. This is on the basis that, the signature document does not have the prescribed terms, the other page they refer to is totally unreadable and they do not have the original documents to present in court. Its a risk (especially if it goes to fast track) but if I feel I have to stand up and not allow myself to be bullied or intimidated.
So based on the info in the threads above I have decided that I will wait until the stay is up and submitt an AQ as per the directions on the first day after the stay. This will include the 2 sections below which I have constructed from info on various threads...(mainly from pt2537 thanks!)
The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:
A revised particulars of claim that is fully compliant with CPR 16.
Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon with original documents to be produced for inspection at the hearing pursuant to CPR 16 Practice Direction 7.3.
Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.
Copies of any other contract, agreement, statements or other documents constituting the agreement upon which the Claimant seeks to rely.
If the Claimant fails to comply with this order, the claim will be struck out without further order.
The Defendant shall within 14 days thereafter file and serve the following
An amended defence sufficiently particularised in response to the documents supplied by the claimant.
If the Defendant fails to comply with this order, the Defence will be struck out without further order.
Then within section H
In the xx County Court
Claim number xx
Between
xx
and
xx
N150 Allocation Questionnaire
Section H - other information
If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.
The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.
The original Particulars of Claim disclose no legal cause of action and 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 to support the request for an amended, fully particularised, Particulars of Claim to be submitted by the claimant;
a) No particulars are offered in relation to the nature of the contract referred to, 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 contract that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, was not served attached to the claim form.
c) No account number is contained within the particulars to enable me to identify the account on which this claim is brought
d) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, was not served attached to the claim form.
Without being issued with a correctly particularised claim, pursuant to CPR part 16, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation it will inhibit the courts ability to deal with the case. Once provided with a correctly particularised claim the defendant will be able to submit a revision of the document dated 5 June 2008 and entered as his defence at the hearing of 3 July 2008. The purpose of this document was to support the application to have judgement set aside and was not intended as a complete defence, which will only be possible once a fully particularised claim has been received from the claimant.
The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment
29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give
notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.
Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the correct, legible original documentation containing the prescribed terms to warrant the agreement enforceable by the court, I suggest that there will be no case to answer.
Therefore it stands to reason that a correctly particularised claim and the associated documents must be disclosed before this case can progress any further.
I would welcome any comments if this is the correct way to go. I am also interested if anyone thinks that at this stage if I can/should request the claimant provides a skelton argument as to the validity of the Rankie judgement in this case as they have already stated to me that they intend to rely on this to prove their case. Perhaps I should add something to the draft directions or is this not a good idea at this stage?
Your Defence neglects to say that you deny receiving a default notice. If you are going to run a defence which argues a default notice was not delivered and/or was not in prescribed form (and I recommend you do) you will need to plead that point.
On your proposed directions:
I wouldn't fuss too much about the quality of the opposition's POC. If they are deficient, let them stay that way. You know what they are after without them having to spell it out, especially since the obligation to disclose all relevant documents will come up pretty soon (see direction 3 below).
I wouldn't bog the court down with prolix legal argument in an aq either. It has the appearance of a nervous newbie. Far better to appear calm and confident.
If the claim has a value in excess of £5,000.00 it's 99.9% certain to get allocated to the fast track. If it is to be allocated to the small claims track you wil have to specify your reason. I can't think of a good one.
The directions I suggest you seek are as follows:
1 Allocate the case to the fast track
2 Liberty to the Defendant to amend and serve the Defence (in the form you will annex to the AQ and which incorporates reference to the absence of delivery of a default notice etc) by (date)
3 Standard disclosure of documents by lists within 14 days of the service of your Amended Defence.
4 Inspection of documents within 7 days of the service of the lists
5 There being no requirement for expert evidence, expert evidence is dispensed with
6 There be mutual exchange of the written statements of the witnesses on whose evidence each party shall rely, such exchange to take place not later than (date, say 1 December 2008)
7 Listing Questionnaires to be returned to the court by (date, say 15 December 2008)
8 List for trial in a trial window of (3) weeks beginning (say) 1 February 2009.
The court might throw in a few other directions or adjust the timetable, but the above is the bones of your requirements at this time I would suggest.
X20, Thank you for responding. I must have read and re-read your advice a 100 times and still find myself procrastinating over what is best to do. My problem is this. When I read my suggested aq above, as a LIP it makes perfect sense to me. When I read your suggestion, although almost certainly procedurally correct, it doesnt look like the work of a LIP and more importantly I don't really know what it means (well most of it).
I consider my objectives at this point are to force the claimant to discontinue by admitting that they don't have the correct, legible documents and to admit defeat. By requesting the submit a correct, POC and associated documents with an order to produce originals at the hearing, my hope is they will throw in the towel, knowing full well they don't have them. Your suggested AQ may well achieve the same thing but I am unsure quite how? I'm not sure a LIP would be expected to start suggesting dates for 'trial windows' etc. What do you think?
I hope what I have said makes sense and that to submit a revised version of my original AQ above will not disadvantage me? I will remove the legal argument element and the request for allocation to small track if you dont think I will be succesful in that request due to amount (even though it is a very straight forward case in many respects).
In truth, as a LiP, the court would happily excuse you if you failed to propose any draft order. It's not your business to. I only set out proposed directions because yours were off target if you don't mind me saying so, in the sense that I do not take the view that it is in your interests to encourage your opponent to improve the condition of their pleaded case, the draft disclosure order was prolix (see mine) and the unless order in regard to disclosure would be refused.
Further, that if you intend to plead a bad default notice you will need to say this in a defence (hence the amendment) and Section H was not the place for legal argument.
I fully understand you should not wish to misrepresent or overstate your legal skill. In which event, just say you wish to amend the Defence to plead the default notice point and leave the remainder of the directions down to the Judge.
As for persuading the other side they're on a loser, do so in open correspondence. Here's an example of such a letter at post 116 of this thread.
Back to Court after Set Aside - HELP PLEASE**WON**
were very vague, ‘the claim is for monies due under an agreement regulated by the CCA 1974 and the claimant claims £xx,xxx’. (if only I knew then what I know now!)
Reply With Quote
Originally Posted by pt2537
or is that publication available from Smiths.
