Thread: Help with court/set aside-next cat *** WON STRUCK OUT ***

Originally Posted by guzzleguts

Hi all
Hope someone can help.

This is a long story so please bare with me.

The reason I found CAG was my wife’s next account, and the treatment she received from Moorcroft, reducing her to tears in 3 phone calls. Have you ever received a Notice of Assignment?

Brief details,
Before I found out about her next debt she had set up a payment plan with next and was making monthly payments, then she paid 1 payment 3 days late and they defaulted her the same week with the cra.


A week before I found out she received court papers from Northampton, and we submitted a defence, because we were a little naive we didn’t send it recorded or special delivery, hindsight is a wonderful thing. Anyway she got a CCJ because the court didn’t receive our reply.

We have since applied for a set aside which is being heard in early jan, however our defence was going to be no cca no debt , but we were shocked to receive a letter 6 days before court with a poor copy of a cca with my wife’s sig on it, its 2 pages they only sent pg 2 with no prescribed terms on it. The copy of the cca must be clearly legible in order for Next to have met its remit under the Act. As you already know without any prescribed terms their goose is cooked. Have you sent off a CPR 18 request yet?

Please can any body advise, im thinking I have to go down the unenforceable route now and no default notice and hope we get a nice judge. Seems like a good plan.

And has we havent been to court before, just some do's and dont's(how to converse with judge etc.)

Any help would be much appreciated.

Thanks GG

Be respectful at all times, no matter how the case is going. Address the judge as Sir or Ma'am as appropriate. Tomtern has produced a very good thread on what to expect in court.

GG Do you have all the relevant pasts of the Consumer Credit Act and the Case Law ?...Judges can vary wildly, and in some instances will need 'educating' to certain pieces of legislation and higher court case law. All I will say is be prepared.

OK....these might help...

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

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The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].
The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169




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11. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

12. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)


13. 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

14. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated
consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting
the provisions of the two schedules the Judge said:


"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the
minimum terms) are to be found in Schedule 1."

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order


17. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

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 and 63, section 127(4) precludes the court from making an enforcement order.

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.


50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

18. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

19. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit X) unenforceable


20. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

21. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

22. As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

23. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

24. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

25. Therefore since the original documents are required under the regulations stated in this defence and further more since the Civil Procedure Rules clearly set out that Original documents must be made available for inspection in practice direction 32 Para 13.1 I request that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement

26. If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT "lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies to the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

27. Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA Civ 633 in the Court of Appeal at Para 26

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;

196. Regulations respecting notices.

- (1) Any notice required or authorised to be served or given by this Act shall be in writing.

and

-(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

28. Therefore the claimant is put to strict proof that the notice of assignment was served in accordance with section 196 as laid out in point 29, should the claimant not be able to discharge the burden of proof in this matter it is averred

29. Further more the defendant requires that the Deed of Assignment be brought before the court for it to be scrutinized and validated as correct

30. In addition, the claimant states at point 4 in their particulars that that there is no need to rely upon service of a default notice in accordance with section 87(1) of the Consumer Credit Act 1974. The defendant rejects this assertion

31. Section 87 clearly sets out that a default notice is a prequsite before a creditor can become entitled to take any action in respect of a regulated credit agreement. For the avoidance of doubt I have included the relevant sections of the Consumer Credit Act 1974 below

87. Need for default notice.

- (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c)to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e) to enforce any security.

And further more section 88 states

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;

(c) 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 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.

32. Therefore the claimants statement that service of a default notice is not required is clearly in error of law and the above sections of the Consumer Credit Act 1974 clearly sets out that service is a requirement and the defendant puts the claimant to strict proof that a default notice which is fully compliant with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as to its form and contents, was served upon the defendant

33. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above

Failure of the Claimant to supply a sufficient letter before action

34. The claimant has in the defendants opinion failed to conduct themselves in accordance with the Civil Procedure Rules insofar that they failed to issue a letter before action compliant with the CPR preaction protocols which state

4.3
The claimant's letter should -
(a)
give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b)
enclose copies of the essential documents which the claimant relies on;

(c)
identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(d)
state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(e)
draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

35. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

36. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

37. Additionally since the claimant has failed to discharge its obligations under Section 78(1) Consumer Credit Act 1974 as stated this defence, it is requested that the claimant case be struck out pursuant to section 78(6) Consumer Credit Act 1974

38. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

39. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.


40. I respectfully ask the permission of the court to amend this defence if / when the claimant provides full disclosure of the requested documents and allows inspection of the original documents

41. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

for the attention of the court I reproduce schedule 3 section 11

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
(c) 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.

I've cut and pasted from some other cases...so you'll need to have a good read through and try and understand what is being said here...

Some bits of the Consumer Credit Act

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.


8.3 What are the prescribed terms?

The prescribed terms specified in Sch 6 are as follows:

* amount of credit – see Q8.

* credit limit – see Q8.5
* repayments – see Q8.9.
* rate of interest – see Q8.6

Sch 6 was not amended by the 2004 Regulations

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Consumer Credit: Default Notices

Some interesting points on defaults.... - read here too - http://www.consumeractiongroup.co.uk...-dodgy-dn.html

If it's not looking good with the judge you could politely request to order the other side to reveal all paperwork, the original agreement, notice of assignment, and the default notice. Call the judge sir/madam, be firm but polite. If the judge says that you owe the money pay them, then you can possibly say, but with the greatest of respect sir...in the various cases highlighted in the high courts, it wasn't disputed that the money was owed it just wasn't enforceable due to...etc etc..