nicked from Andy...

Default notices, litigation and section 127(3) of the Consumer Credit Act July 2010

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For a creditor to enforce a credit agreement against the debtor,

he must serve the latter with a default notice,

this notice must be served in accordance with section 88 of the Consumer Credit Act 1974 (CCA).

.

Generally, the prescribed form of a default notice according section 88 is as follows:

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"The default notice must be in the prescribed form and specify

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(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;

© 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."

.

Section 127(3) of the Consumer Credit Act 1974

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Should the debtor be sued for the outstanding amount,

it may be open to the debtor to raise an argument that the agreement is unenforceable

because it does not comply with the requirements of the Consumer Credit (Agreements) Regulations.

.

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA').

Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.

.

The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

.

In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.

Regards

Andy

forget the credit file

Oops

Section 127(3) has now been repealed

Oops

 

Section 127(3) has now been repealed

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA').

Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.

So as this agreement was after 2007 the default notice is not a valid defence?

What other options do you have when defending?

Cant use non-compliance of the CCA/CPR as they have actually complied and the Default Notice is out as well.

Default Notice legislation has not changed pre or post 2007 .

Righto, hows this then? I wasn't really sure if I should mention the default notice specifically or if a broad statement about not fully complying is good enough?

Particulars of Claim for reference only

1.The defendant owes the claimant £100.00 under a regulated loan agreement with ariste holding ltd t/a cash genie dated 30/05/2014 and which was assigned to the claimant on 27/04/2016 and notice of which was given to the defendant on the 27/04/2016 (debt).

2.despite formal demand for the payment of the debt the defendant has failed to pay and the claimant claims £100.00

and further claims interest theron pursuant to section 69 of the county court act 1984 limited to one year to the date hereof at

the rate of 8.00% per annum amounting to £8.00

#######Defence#######

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

2. The Claimants statement is noted I have in the past had financial dealings with Cash Genie. I do not recall the precise details or agreement and have sought verification from the claimant and the claimants solicitor by way of a CPR 31.14 and section 77 request who are yet to fully comply.

3. The Claimants statement regarding the assignation of the debt is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served on 27/04/2016 from either the Claimant or Cash Genie.

4. It is therefore denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement; and

(b) show and evidence any cause of action and service of a Default Notice

© show how the Defendant has reached the amount claimed for; and

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

5. On receipt of this claim I requested by way of a CPR 31.14 request and a section 77 request, copies of the documents referred to within the Claimants particulars to establish what the claim is for. To date the Claimant solicitors, Moriarty Law, have failed to fully comply with this request.

6. As per Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

7. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82 A of the consumer credit Act 1974.

8. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Just a few edits and I have put them to strict proof at point (b) to evidence the cause of action.

Andy

Ahh Brilliant. Thanks ever so much!

Oh Crikey. I totally missed that today was the last day to file. Phew that was a close one.

Letter on Saturday from Moriarty Law.

"We write to acknowledge receipt of the Defence filed by you with the Court and in that regard we confirm our client is proceeding with their claim."

So, what now? I highly doubt they will send a solicitor to the court to press the claim for £100. Is it just spite to get her to pay out costs to get there ?

or could be willy waving hoping you'll crumble before they discontinue or simply let it get autostayed.

Well, I almost lost my mouthful of pie

Brilliant response! I won't share the image I currently have of their solicitor

You will know if they are proceeding when you receive a Directions Questionnaire N180 from the court for you to complete and submit......

I have in hand a "Notice of Proposed Allocation to the Small Claims Track".

So, fill this in and return manually? I cant see it on the Moneyclaim site.

Seems straightforward enough. No to mediation, no to experts, 1 witness(her?) dates unavailable(what about times? Nearest court to her is quite far away, so anything before 11 and after 3 is impossible). Then just return it to the court(recorded).

Yes to med

Copy to sols

Yes to Mediation? Surely she doesn't want to go to mediation as thats to pay it right?

No its to narrow any differences and possibly agree a settlement without the claim proceeding.......which the court expects all parties to participate...even if it fails.

Quick update -

Mediation has not happened, when they called up to arrange a meeting they said the case was not suitable for mediation and have transferred it to the court.

At least you tried to participate ...box ticked:-)

Letter from the court(the actual court rather than the bulk centre).

IT IS ORDERED THAT -

1. The claimant shall by the 18 of August 2017 file and serve further particulars of claim detailing how the sum claimed has been calculated and annex a copy of the Regulated Loan Agreement dated 30 May 2014.

2. The Defendant will by 1 September 2017 file an amended Defence.

So await contact from MMF by the 18th?

Just subbing on this forum if I may, I am watching with bated breadth as I have just received court papers from MMF so this will give me a few pointers. It seems Moriaty Law have been busy in the last few months.

Reply received yesterday, can't scan them until later in the week as I left them at hers(silly) but its no different. Still no default notice(which her defence was based on) and no real update on the particulars.

Oh there is a big bit on the letter "We have previously advised you that the Claimant is prepared to enter into mediation." I thought that was amusing.

sorry about the delay. Couldn't get to a working scanner.

This is the amended claim and the court would like an amended defence.

What next?

I assume I can't file anything on moneyclaim and it has to go direct to the court.

Do we need to even change anything?

They are still in breach off the CPR and have not filed a default notice.

001 Edited (3 files merged).pdf

Just subbing on this forum if I may, I am watching with bated breadth as I have just received court papers from MMF so this will give me a few pointers. It seems Moriaty Law have been busy in the last few months.

I'm exactly the same! Rooting for MrJohnW!