MTB v Halifax

[alamand]

Hi everyone.

I have just received court papers from Northampton regarding my dispute with Halifax cc.

I CCA'd Halifax in April 2007 and received the following application form

I posted the application form on Spiritgirl v dca thread so someone could look at it for me and Rory said it was not enforceable.

I wrote to Halifax stating it was not a credit agreement and I did not hear anything from them until March this year.

Blair Oliver and Scott wrote saying my arrangement of £1 was due for review, I didnt have an arrangement with them.

Then I received Notice of Legal action 2 weeks ago, which I sent them a letter saying the account was in dispute.

I have received the Court papers today.

Can Rory or Spiritgirl or anyone please advise on what to put on the court papers. I am definately going to defend but I am stumped as to what I should reply with.

I am looking forward to this challenge but I am also shaking. I did try and offer a f&f settlement with Halifax 2 years ago but never got no reply.

Can anybody please help and advise.

Thanks Alamand

[42man]

Alamand I'm not an expert on this but....I know you have to acknowledge the claim within 14 days on the court papers, then you have another 14 days to submit a defence....I think you are going to defend ALL of it I presume....

 

This is a usual letter sent out when court papers are received....sned by RECORDED DELIVERY to the opposing solicitors...

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

As for the enforcement part....this may help...

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[alamand]

Thanks 42

I dont really know what i have to do. I think I have to defend all, but thats all I know.

I dont really know if the application form is enforceable as it does have the APR on and the wording "we will determine credit limit" and it says something about about "minimum payment", but no T&C'S.

I am just going on what Rory and Spiritgirl said in that it is a pre-contractual agreement and not a true credit agreement.

So do I just send the letter you have given me to the solicitors and the acknowledgement of service and a copy of the same letter to the courts for now, and prepare the defence before the 28 days deadline?

I am sorry for appearing a bit thick, but I have never been in this situation before, it all looks foreign to me, and theres loads of big words,so loads of help needed from you lovely people please.

Thanks

Alamand

[42man]

I know you should certainly send the letter to the opposing solicitors....I'm pretty sure you don't send the letter to the courts....(but you have to acknowledge the court papers within 14 days of the date on the papers, then you have a further 14 days to submit a defence....)

 

Have a good read around the legal forums (and legal successes too) too (there are a lot of people in similar circumstances to yourself)....(i'm certainly not an expert)....might be worth sending Spiritgirl/Rory a PM (asking her/him to look at your thread).....

[alamand]

Thanks 42

I will pm Rory

Thanks

Alamand

[alamand]

Hi

Can anybody please advise me on this credit agreement. I have received court papers and I need to prepare a defence. I have sent the letter to halifax for the documents and so on but I am not certain on the arguments about the agreement, and is there anywhere on here where I can find a suitable POC that is similar to my agreement.

Many Thanks

Alamand

[42man]

This is a good thread here...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/144007-help-amex-no-cca-3.html

[alamand]

Thanks 42.

Sorry for delay but I am having trouble posting messages.

 

Some one says that Halifax should have sent a default notice first. They sent one about 5 years ago but I went on a DMP and they settled for that, but they didnt send one before they put me in court.

Has anybody got any ideas please.

 

Thanks

Alamand

[alamand]

Just panicking a bit here guys.

On the advise of people on here I have queried this application form.

Was told it was unenforceable because it was an application form so I have sent the appropiate letters to Halifax.

On reading some posts, it seems an application form can double up as a credit agreement.

I dont know what to do next.

Now I am in court with this agreement, nobody seems to want to help.

I have 6 days left to defend this and 2 weeks to prepare a defence, I am really confused.

I am not trying to get away with debt, I am trying to sort it out. I offered Halifax a FF settlement 3 years ago but they never replied. I have also negotiated F&F settlements with 5 of my debts which leaves me with 4 credit cards, 2 of which have sent reply cards, 1 has sent nothing and Halifax have sent this one. It is the conflicting advise on different posts that is confusing me.

Can anybody please help me sort it out as time is running out.

Thanks

Alamand

[sosumi]

Hi, did you send the letter 42Man put on here for you?

Also you could try sending one of the Moderators a PM, for advice.

[alamand]

Hi

I sent the letter on Monday.

I pm'd Rory on Monday but he has not replied.

This is why I am panicking because nobody is replying and I am not sure what to do or what I am defending.

Thanks sosumi

 

Alamand

[sosumi]

Did you send the letter by Recorded Delivery?

If you click here, for the main forums page, scroll down to the bottom you'll see a list of members online, and also the moderators in green and site helpers in pink:

http://www.consumeractiongroup.co.uk/forum/

Sorry I can't help more, but keep posting! xx

[alamand]

Yes I sent it Recorded delivery

Thanks

Alamand

[sosumi]

If you PM one of the active Mods with a link to this thread, they should be able to reply to you here

[42man]

Alamand...firstly common sense should prevail, here how can you defend a claim, when you don't have ALL the information as requested in the CPR !!

 

As for the defence, let's see what they send back....

 

There are various aspects which can be looked at for defence / dispute

 

No default notice

No notice of assignment

Excessive Charges

Consumer Credit Agreement (prescribed terms and is executed)

 

This is the usual defence that is used without any paperwork provided....please have a read and look at some other threads, and try and understand as best as you can...i'm not an expert and can only advise on what I have seen on the forums...

 

Reproduced courtesy of pt2537

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxx - Defendant

 

 

 

Defence

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the amended claim made by xxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

a) The claimant's statement of case still fails top comply with the requirements of CPR part 16 and practice direction 16 insofar that this claim is based upon a written contract namely a regulated credit agreement regulated by the Consumer Credit Act 1974 and as such the Civil procedure rules requires that a copy of the written contract be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon

 

 

 

Statutory request made under section 78 Consumer Credit Act

 

4. On xx/xx/2007 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. Copies of the letter and proof of delivery attached marked Exhibit X & X

 

5. For clarity, section 78(1) of the Consumer Credit Act 1974 states

 

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

 

(a)the state of the account, and

 

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to in points 4,5 and 6

 

 

The Request for disclosure

 

 

 

8. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice and the notice of assignment. (Attached marked X)

 

9. To Date the claimant has failed to accede to my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

 

 

10. Notwithstanding point 7 that the claimant is not entitled as matters stand to this action. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains 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).

 

 

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;

The Assignment and Notice of Assignment

 

28. The claimant cites in their amended particulars that they have acquired the alleged debt by way of assignment. The defendant denies that notice of assignment as required by section 136 of the Law of Property Act 1925 has been received and the defendant puts the claimant to strict proof that the notice was served in accordance with Section 196 of the Law of Property Act 1925

 

29. For the avoidance of doubt, section 196 of the Law of Property Act 1925

 

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.

30. 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

 

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

 

32. 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

 

33. 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

©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;

 

© 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.

34. 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

 

35. 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

 

36. 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;

 

©

ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

(For many claims, a normal reasonable period for a full response may be one month.)

 

(d)

state whether court proceedings will be issued if the full response is not received within the stated period;

 

(e)

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

 

(f)

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

 

(g)

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.

 

37. 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

 

38. 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.

 

39. 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

 

40. 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

 

41. 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.

 

 

42. 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

 

43. 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

© 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.

 

 

:

 

 

 

 

 

 

Statement of Truth

 

 

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

 

 

Signed .....................

 

Date

[42man]

You may need to add a point also in here that as you have no statements how can you know if the debt is made up entirely of excessive charges as it is not uncommon for debts to be made up of these....

[alamand]

Thanks 42

So I will send the acknowledgement off on Monday, defending the claim and wait to see what they send me.

 

If they dont send anything I should send the above letter.

 

I did a Sar on them last year and I think the charges added up to about £200 thats all, because we would rob Peter to pay Paul at that time, then we started a DMP with CCCS.

 

Then we found this site and we have started to sort our debt out. we just have these 4 credit cards left to sort out. We have settled the others.

 

Many Many thanks 42, I just needed a little guidance on what to do because I am reading that many threads and some contridict each other. I didn't know where I was.

 

Thanks

Alamand

 

PS.

I will tickle your scales

[42man]

No problem at all Almand....and yes watch the timescales...and PM me if you need any help (I will try my best)....try and get as good an understanding as you can of what is being said and why, and have a read of other threads too...

 

YOU NEED TO SEND THE LETTER I FIRST PUT UP IN POST NO 2 ASAP (don't wait until you submit the defence)....don't wait...!! and send it recorded....

 

Then you will have another 14 days to submit the defence, i'm pretty sure they will no tbe able to come up with these documents in such short a time....

[alamand]

Thanks 42

I posted the letter on Monday,recorded delivery.

Just need to acknowledge now on Monday and wait.

Many thanks. I was just panicking a bit cos I didnt really understand what to do. Now it seems a bit clearer

Alamand

[alamand]

Hi guys.

 

Well I havnt received anything from Halifax yet and I need to put a defence in by the weekend.

 

Reading the defence above, I will omit the Assignment part ( OC taking us to court)and letter before action part, asthey sent that letter,but can anybody advise me about the Default Notice part.

 

I received a default notice about 5 years ago when we first got into difficulties.

Should I have received another one before the letter before action letter and before they put me in court?.

 

Also is the application form I have recieved, enforceable?.

I have read an application form is a pre-contractual agreement, so not enforceable but I think it says in the CCA, any "document" as long as the prescribed terms are present.

It seems to me that the prescribed terms are present.

 

I think I understand the above defence now, I am just unsure about the 2 points I have raised.

 

Many Thanks

Alamand

[alamand]

Hi guys

 

Any advise on the Default Notice part.

 

I have found the default notice they sent me, it was November 2004.

According to equifax and experian the default is dated 12/2006. Cant remember getting a default notice then, as I was on a DMP with CCCS then and I was receiving monthly statements and they accepted what we was offering.

They definately havnt sent me one before the court papers.

 

I sent cca request april 07 and they sent the application form to which I replied saying it was not a credit agreement after advise from Rory and statements stopped and I didnt hear from them until Jan 08 when Blair Oliver and Scott contacted us and I told them the account was in dispute.

 

Then the court papers.

 

I have seen somewhere on here advise about Default notice's but can't find it now.

 

Thanks

Desperate Alamand

[alamand]

Hi

 

Any ideas on the default notice guys ?

 

Alamand

[spiritgirl59]

Hi Alamand

 

I didn't receive another Default Notice myself before Lloyds took me to court. I only ever got one DN, and that was ages back, but I certainly didn't get a second one before they started proceedings.

 

Looking at the agreement you have posted up on this one, it looks enforceable to me, because in my opinion the prescribed terms are present BUT having said this rory has a lot more experience than I do, and I would prefer it if he advised you further because he has said its not enforceable further back in this thread.

 

Sorry I can't be of more help to you Alamand.

 

Good luck!

Love SG x

[alamand]

Thanks Spiritgirl

 

I dont know if a second default is needed as the first one I received was for a payment of £100 to clear outstanding payments, just needed to know if they should have sent another for the full balance before they started court proceedings.

I have tried searching other threads for the answer but cant find one.

 

I have tried to pm Rory but he hasnt replied so dont know what to do now.

 

I have acknowledged so I have to put the defence in now.

Just dont know what I'm defending.

 

Many thanks Spiritgirl

Alamand

[rosierose]

Hi Alamand

 

If you paid the £100 within the required period then they would have had to issue a second notice.