I can't give you any guarantees....it is a decision you have to make, it may cost you and you may lose, and you would have to become a litigant in person lawyer. And bear in mind judges do vary wildly...

Not sure which line to take, will ahve a think about it.

Can you please just explain exactly why the default notice isn't valid?

I understand that it is not in the prescribed form but can you please explain exactly why?

Once again thanks for all your help

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

Section 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

© 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.

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88. Contents and effect of Default Notice

(1) The Default Notice must be in the prescribed form…

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

14. Furthermore, the Default Total cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated by the claimants legal action. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

You'll need to do a bit of reading !!!

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/132160-really-confused-3.html

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

Can you have a look at the email below for me please? I intend to send this today if it looks OK, and will then be deleting it from the site as walls have ears if you know what I mean. I will repost once the case has finished.

Well today is the day, will post back when I find out the result!

Ended up submitting an amended defence saying that their default notice was not in the prescribed form, sky high APR, stupid charges etc.

Should get the result at 10am today as I was unable to attend yesterday.

Will post when I have found out.....

Good luck!

thanks robjam, sorry for the bad advice. good luck.

What was the outcome of this, I think you should have attended no matter what - odds on they did not turn up...

Well i've been off work for a few days and just come back and phoned the court to get a response. I sent in my amended defence but this was returned to me as I had made the cheque payable to HMRC rather than HMCS (stupid mistake I know).

I received a letter on the 15th July stating I had until 22nd July to pay the outstanding £40.00 otherwise the case would be automatically struck out.

Upon speaking to the court today they said judgement had been ordered for the claimant for the total amount of £615.78 + £210 costs. Total £825.78 to be paid by 29th July 2010. I just cannot believe it.

Can anyone advise what I can do next? £825 for a £150 loan is just unbelievable, especially when I took the paperwork for the amended defence to the court myself, they checked all the paperwork and said it would be dealt with. Clearly it hasnt.

Can anyone help as there is no way in the world can I afford to pay that and i'm now in bits.

cheers

Bit of a long story but not good!

The court have sent me my amended defence back but this was returned to me as I had made the cheque payable to HMRC rather than HMCS (stupid mistake I know).

I received a letter on the 15th July stating I had until 22nd July to pay the outstanding £40.00 otherwise the case would be automatically struck out.

Upon speaking to the court today it appears the claim was still heard on the 15th, they said judgement had been ordered for the claimant for the total amount of £615.78 + £210 costs. Total £825.78 to be paid by 29th July 2010. I just cannot believe it.

Absolutely gutted.

DONT PANIC - get onto the court first thing in the morning, speak to the court manager and ask why they did not comply with their own advice to you! Then you get an N244 Variation form and fill it in, add your defence AND add additional costs for the screw up - and get that to the court ASAP.

Once they have realised they have screwed up you will be in a better position to state your case - stick to the point that you are a litigant in person with very limited legal experience and that you have no idea of court processes.... ignorance here is your ally

I am around all day tomorrow and Friday if you need any more help and advice.

Will do that today.

Thanks for the info.

s4ddy

Well just come back from the court in my lunch hour and the story unfolds some more......

Firstly they said the case had now been sent to trial in October with a load of other orders set by the judge. I questioned this and it appears the wrong order had been typed up on my case. Not good.

He then went back to check again, and said he had found what the judge had said, judment to the claimant for the full amount + £210 costs. Reasons being I was not there to state my case, and the claimant defended explained everything in my defence (so they must have turned up).

I questioned the order I had from the court saying I had to submit my defence no later 22nd July due to the cheque error, and he said it was two seperate departments. The judge would have had no idea that I had submitted an amended defence so that would not have been taken into consideration. As you can guess at this point I felt like crying.

I asked what I could do next and he said I had two options. I could either pay the money (don't fancy that much), or submit an application for the judgement to be set aside.

I figured there was nothing else I could do there and then so asked for a copy of the judgement so I had it when completing my application for the judgement to be set aside. He said the order hadn't even been typed up yet, and I should receive it Saturday or Monday. Not helpful when i'm expected to have paid it by next Thursday!

So looks like this aft I will be filling out yet more court forms to have the judgement set aside, although i'm not holding out much hope.

So be warned people Payday loans DO take people to court and the judge MAY find in their favour.

My advice would be to get advice as soon as the problem arises and not leave it till the alst minute like me!

Well just come back from the court in my lunch hour and the story unfolds some more......

Firstly they said the case had now been sent to trial in October with a load of other orders set by the judge. I questioned this and it appears the wrong order had been typed up on my case. Not good.

He then went back to check again, and said he had found what the judge had said, judment to the claimant for the full amount + £210 costs. Reasons being I was not there to state my case, and the claimant defended explained everything in my defence (so they must have turned up).

I questioned the order I had from the court saying I had to submit my defence no later 22nd July due to the cheque error, and he said it was two seperate departments. The judge would have had no idea that I had submitted an amended defence so that would not have been taken into consideration. As you can guess at this point I felt like crying.

I asked what I could do next and he said I had two options. I could either pay the money (don't fancy that much), or submit an application for the judgement to be set aside.

I figured there was nothing else I could do there and then so asked for a copy of the judgement so I had it when completing my application for the judgement to be set aside. He said the order hadn't even been typed up yet, and I should receive it Saturday or Monday. Not helpful when i'm expected to have paid it by next Thursday!

So looks like this aft I will be filling out yet more court forms to have the judgement set aside, although i'm not holding out much hope.

Can anyone please take a look at the documents in this thread and tell me if there's anything else I can use to have the judgement set aside?

My amended defence already covers adding £137.00 in charges when they only sent 5 letters and the default notice not being in the prescribed terms.

Any help at all would be most appreciated as i'm at the end of my tether, serious down.

Cheers

honesty and communication is the best policy. i feel for you mate, i made the same mistake a while back.

there is always a chance you can end up in court but if you do you need to do your research and stick to the courts timescales. Above all you need to attend or be at their mercy.

So far it would appear debit card loans, tower capital and now cash genie will try the court route.

This is the first time I have seen one of these companies win.

so whats the latest on this?

The latest on mine is that I got the judgement set aside, went back to court, lost miserably, got CCJ'ed for over £600......

well thats not good....you must have been very careless my friend....