Northern Rock unsecured loan claim recived

[katie3105]

Hi there

 

Just helping our a friend in financial difficulty. I have put some of my own creditors into dispute by sendig off cca requests and advised a friend to do the same with her Northern Rock loan to see what happened. She has a copy of the agreement which is her original from the time of signing, She has not however recieved anything from them since doing a cca request ion 24th July 2008.

 

Here is a time line of what has happened:

 

24th Jul...cca request sent

 

2nd sept...letter from Nr asking for signature

 

18th sept...letter sent back to them to say no sig required etc

 

30th sept...letter from Nr asking for sig again

 

12th Nov...letter sent to NR saying had not received a response to previous letter.

 

5th dec....letter from Nr enclosing copies of their 2 previuos letters saying that without sig of both parties they wont supply.

 

15th jan ....default notice from NR dated 15 jan...have to pay by 1st feb.

 

9th Feb ....letter to NR saying that if it is to sub id then a copy of driving lc can be sent however they have been quite happy to send docs to this address etc etc.

 

18th Feb.....default letter sent to say in dispute etc.....

 

18th Feb....letter from Nr to say formal demand for repayment and that they are terminating loan and 14 days to repay or they will take legal action.

 

26th Feb....letter sent to ask for agreeement under CPR 31.16

 

NO RESPONSE

 

Court papers issued 2nd April 2009

AOS Done

Defence needs to be done and at court by `11th MAy 2009

 

I have helped her with a defence I got from another thread but wondered if someone could look at it to make sure it is ok....

 

1. I Mr am the defendant in this action and make the following statement as my defence to the claim made by Northern Rock.

 

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

 

3. The claimants' particulars of claim disclose no legal cause of action and they are embarrassing to the defendant as 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;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. 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, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with Northern Rock. On the 24th July 2008 I wrote to Northern Rock requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the 26th July 2008. (A copy of the correspondence is attached to this defence marked CP)

 

6. On 18th Feb 2009 another letter was sent to Northern Rock explaining that they were in default of the Consumer Credit Act 1974 by failing to produce the agreement. ( Please see attached ref CP2).

7. A further request was made for the agreement on the 26th Feb 2008 pursuant to CPR 31.16 and this again has been ignored. (See attached ref CP3).

 

8. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

The Request for Disclosure

 

9. Further to the case, on 16th April 2009 I requested 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.

 

10. To Date the claimant has failed to comply with 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, especially given that I am Litigant in Person a copy of the request is attached to this Defence marked CP 4).

The importance of a copy of the credit agreement and its production before the court

 

11. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

12. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behaviour in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence.

 

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

 

14. 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).

 

15. 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

 

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. Notwithstanding point 15, the agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

The Courts Power of Enforcement

 

18. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with.

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

19. Furthermore 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.

20. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act. I refer to the judgment of Lord Nicholls of Birkenhead below....

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.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met.

 

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

 

22. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

23. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts.

 

23. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

24. 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 unenforceable.

 

 

The Need for a Default notice

 

25. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

26. It is neitheradmitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

27. Notwithstanding point 26, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

28. 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 a 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.

 

29. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants’ case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

30. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

31. 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 Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

32. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced on 03/10/2005 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

 

Statement of Truth

 

 

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

 

 

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

 

[katie3105]

The original loan was for 20,400 over 360 months.

 

No cancellation rights sent either depsite it saying in the original agreement that 'you will have a short time to cancel, exact details of how to do this will be sent to you'.

 

A cpr request has been sent to the sols on 16th April 2009 asking for agreement.

 

Not asked for info on charges etc....however.

 

POC is as follows:

 

1.By written loan agreement the claimant advanced to the defendant the sum of £20,400

 

2. The agreement was regulated by the cca 1974 and is is a cca claim

 

3. It was a condition that the defendant would repay the said loan, together with contractual interest at the current rate of 5.89% pa, calculated on a daily basis on the amount of the loan outstanding, by equal monthly installments of £120.90

 

4. It was a further condition that, if the def defaulted on the agreement in 1 or more ways specified in the agreement ('the specified breaches'), and the def failed to comply with a default notice sent to the def, the outstanding bal(as defined in the agreement0 would become immediatley due and payable.

 

5. The def committed a specified breach, and failed, within 7 days, to comply with the default in prescirbed form to the def by the calimant in respect thereof.

 

6. Accordingly the outstanding balance ( inclusive of contrcatual interest up to that point) became due and payable in the sum of £20,535.92.

 

7. Wrongfully in breach of contrcat the def has failed to pay the entirety of the outstanding balance.

 

PARTICULARS

 

The outstanding balance at the date of issue of this claim was £20,535.92.

 

8. Further, the claimant is entitled ton contractual interest on the outsatnding balance at the contrcatual rate of 5.89%, currently being a daily sum of £3.31, alternativley stat int pursuant to sec 69 of the county courts act 1984, at such a rate and for such a period as the court thinks fit.

 

And the claimant claims:

 

1. The sum of £20,535.92 being the balance of the laon and charges including interest to the date of issue of the claim.

 

2. Interest, pursuant to contract, contining at the daily rate of £3.31, alternatively pursuant to statute, to be assessed.

 

Attached to th claim was a copy of the default notice and a copy of the letter of termination. NO AGREEMENT WAS ATTACHED.

 

If anyone can advise I would really appreciate it. I have learned a lot through this forum but am struggling with the defence and not sure if I have done it properly.

 

Thanks

[42man]

Katie you mentioned above that you sent a CPR31.16 !! It should be a CPR31.14, please tell me you got the 31.14...!!

[42man]

Was the Default notice compliant by the way ? Agreement ?

[I've got no money]

Hi there

 

Just helping our a friend in financial difficulty. I have put some of my own creditors into dispute by sendig off cca requests and advised a friend to do the same with her Northern Rock loan to see what happened. She has a copy of the agreement which is her original from the time of signing, She has not however recieved anything from them since doing a cca request ion 24th July 2008.

 

Here is a time line of what has happened:

 

24th Jul...cca request sent

 

2nd sept...letter from Nr asking for signature

 

18th sept...letter sent back to them to say no sig required etc

 

30th sept...letter from Nr asking for sig again

 

12th Nov...letter sent to NR saying had not received a response to previous letter.

 

5th dec....letter from Nr enclosing copies of their 2 previuos letters saying that without sig of both parties they wont supply.

 

15th jan ....default notice from NR dated 15 jan...have to pay by 1st feb.

 

9th Feb ....letter to NR saying that if it is to sub id then a copy of driving lc can be sent however they have been quite happy to send docs to this address etc etc.

 

18th Feb.....default letter sent to say in dispute etc.....

 

18th Feb....letter from Nr to say formal demand for repayment and that they are terminating loan and 14 days to repay or they will take legal action.

 

26th Feb....letter sent to ask for agreeement under CPR 31.16

 

NO RESPONSE

 

Court papers issued 2nd April 2009

AOS Done

Defence needs to be done and at court by `11th MAy 2009

 

I have helped her with a defence I got from another thread but wondered if someone could look at it to make sure it is ok....

 

1. I Mr am the defendant in this action and make the following statement as my defence to the claim made by Northern Rock.

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

3. The claimants' particulars of claim disclose no legal cause of action and they are embarrassing to the defendant as 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;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. 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, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

The build up to this action

5. In the build up to this action, I had raised a formal dispute with Northern Rock. On the 24th July 2008 I wrote to Northern Rock requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the 26th July 2008. (A copy of the correspondence is attached to this defence marked CP)

6. On 18th Feb 2009 another letter was sent to Northern Rock explaining that they were in default of the Consumer Credit Act 1974 by failing to produce the agreement. ( Please see attached ref CP2).

7. A further request was made for the agreement on the 26th Feb 2008 pursuant to CPR 31.16 and this again has been ignored. (See attached ref CP3).

8. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

The Request for Disclosure

9. Further to the case, on 16th April 2009 I requested 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.

10. To Date the claimant has failed to comply with 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, especially given that I am Litigant in Person a copy of the request is attached to this Defence marked CP 4).

The importance of a copy of the credit agreement and its production before the court

11. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

12. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behaviour in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence.

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

14. 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).

15. 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

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. Notwithstanding point 15, the agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

The Courts Power of Enforcement

18. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with.

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

19. Furthermore 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.

20. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act. I refer to the judgment of Lord Nicholls of Birkenhead below....

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.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met.

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

22. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

167 Justice of the Peace (2003) 773.

23. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts.

23. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

24. 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 unenforceable.

The Need for a Default notice

25. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

26. It is neitheradmitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

27. Notwithstanding point 26, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

28. 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 a 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.

29. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants’ case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

30. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

31. 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 Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

32. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced on 03/10/2005 the Consumer Credit Act 1974 is the relevant act in this case.

Statement of Truth

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

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

 

Please don't use that defence...

 

It is not appropriate here (IMHO generally it is not appropriate anywhere)

 

On the claim as pleaded you an produce a much more specific defence.

 

At this stage - lets give it a week to see if you get any info from the other side - specifically the details on the agreement - and we'll then sort out a defence that meets the claim

[I've got no money]

Katie you mentioned above that you sent a CPR31.16 !! It should be a CPR31.14, please tell me you got the 31.14...!!

 

 

If you've sent a CPR 31.16 request by mistake - don't panic - do them a quick letter saying that I am a Litigant in person and I meant to put CPR 31.14 nor CPR 31.16 - please treat my request as under CPR 31.14

[katie3105]

Hi all

 

DOnt panic i did a Cpr 31.14 just me getting mixed up .....sent that on 16th April to the solicitors to ask them to produce the agreement.

 

The default notice looks to be compliant but not sure on the dates. It is dated 15th Jan 2009 and gives them until 1st feb to remedy.

 

They have not sent the agreement despite several requests and a request under 31.16 before proceedings were brought.

 

I thought the defence seemed a bit long winded but used it from another Northern Rock site and they got their claim struck out on the basis that they did not supply the agreement.

 

Any help is greatly appreciated. I can try and get copies of DN and agreement ( their copy) if needed just let me know.

 

thanks

[I've got no money]

Excellent

 

Yes - the idea is that you get an Order to require them to produce the agreement and that eventually they get struck out for not providing it.

 

Some other Caggers think that the embarrassed defence is wonderful - not me - it makes me cringe everytime I read it. I've got a much shorter one that does the business. Nearer the time I'll post it and you can have a look and make your own mind up

 

What the long defence is useful for is that it explains to you basically what the law is

[supasnooper]

Hi katie,

 

Did you keep the envelope the Default Notice was sent in ?

[katie3105]

no unfortunately not...it is my friends. I guess it will probably be valid then if thats the case as she cannot prove when it was posted etc....??? Thanks iv got no money....i would really apprecaite a look at it when you can post it.

I have defended a court case with CL finance and used a really short holding defence as they had not provided the agreement.

I dont want to mess this up for my friend as its such a large amount of money and NR ultimate goal will be to try and get a charging order i am sure.

However...fact remains that she has asked for the agreement on numerous occasions and they still have not provided it. I guess if they were to turn up with it at this stage or in court the judge would not look on them very favourably.

 

thanks guys

[I've got no money]

Can I give you my suggested holding defence - it needs the correct names putting in and is written on the basis that you don't know enough to plead it properly. If they produced the correct information and documents then it needs an extensive rewrite

 

IN THE

XXXXX COUNTY COURT CLAIM NO:

 

 

BETWEEN

 

 

xxxxxxx

 

 

CLAIMANT

 

 

And

 

 

 

 

 

XXXXXX

 

 

DEFENDANT

 

 

 

 

DEFENCE

 

 

 

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

2. It is Not admitted that the Defendant signed an agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of anysuch agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its' inception

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

5. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

6. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed or at all.

7. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

 

XXXXX

Date

Edited April 24, 2009 by I've got no money

[katie3105]

thanks for that....I would have used it...however, my friend rang on friday night to say the solicitors have sent a copy of the agreement.

 

I am now stuck on whay to advise as everything seems to be in order. I was wondering if there was some kind of damage limitation she could do and if anyone knows how to proceed.

 

Just to recap....she has asked for the agreement 2 or 3 times...sent a default letter and a cpr 31.16 (pre action) and they have not sent the agreement to any of these letters. SO she stopped paying and is about months in arrears. The default notice looks to be ok and so does the agreement I can post them if necessary.

 

PLEASE ADVISE SHE IS NOW REALLY WORRIED ANY HELP WOULD BE REALLY GRATEFUL.

Thanks

[supasnooper]

If you could post up the agreement (minus personal details), it will give us an idea how to progress.

[katie3105]

hi there

 

I am trying to post the agreement now....via photobucket so hopefully yo will be able to read it.

 

The agreement was 5 pages long and is dated 6th Sept 2005 and ssys original on it. Pages 1 and 2 had the financial details on along with the signature and page 3,4 and 5 were general conditions.

 

However, when i checked it against their docs...they were sent an agreement dated 9th nov 2005 with slightly diff figures on it and it says 2nd copy. The accompanying letter dated 9/11/05 says 'we have now received your signed credit agreement for the unsecured loan part. The cca 1974 requires us to send the enclosed copy for your ref. In addition plese find enclosed a copy of the original agreement signed by northern rock for records. (there was a copy of the original as well)

 

It gets stranger by the minute lol

 

here is the link for the photos.

 

northern rock pictures by katie3105 - Photobucket

 

thanks again

 

 

thanks

[katie3105]

bump....could really use some help on this not sure what to do.....thanks

[ncf355]

By my calculations, at the least the Default notice is invalid on dates

 

If the letter is dated 15th January, you allow 2 working days for delivery, which puts it with you on Monday 19th January

 

The 14 days that need to be allowed are CLEAR days - these cannot include day of delivery OR the date upon which they intend to take action

 

Thiis means the minimum date they could take action on would be 3rd February, NOT 1st February

 

I'm sure others will add to this

[supasnooper]

Just so you understand how ncf355 has arrived at at his conclusion, the info below sets it out -

 

Click here to read the full details.

Quote:

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[katie3105]

hi guys.....how does this affect the case and how would i progress. I am in unfamiliar territory....

[katie3105]

could someone please look at the agreements also and advise on their thoughts and also what to do about a defence....or is it worth writing to the sols to explain that they have been in default of my cca request and ahve not provided docs and therefore was in dispute and to ask to go back to payment arrangement and try to pay of arrears without the need to go to court.

 

thanks

[katie3105]

Also ....was ondering they dont know wether the figure being claimed is correct....no statement has been provided or evidence of how it has been calculated. The loan was taken over 360 months....are they allowed to claim for interest over all those years and how do we detemine exactly how much they can claim for.....

[katie3105]

bumping this as i am getting no response

[katie3105]

bunping this as i am getting no reponse and not sure how to proceed

[steven4064]

could someone please look at the agreements also and advise on their thoughts and also what to do about a defence....or is it worth writing to the sols to explain that they have been in default of my cca request and ahve not provided docs and therefore was in dispute and to ask to go back to payment arrangement and try to pay of arrears without the need to go to court.

 

thanks

I looked at the agreement and as far as I can see it is properly executed (ie fulfills all the requirments of schedule 1 of the Consumer Crdit (Agreements) Regulations 1983) and is therefore enforceable. I thin k it is worth trying the approach you indicated.

 

Also ....was ondering they dont know wether the figure being claimed is correct....no statement has been provided or evidence of how it has been calculated. The loan was taken over 360 months....are they allowed to claim for interest over all those years and how do we detemine exactly how much they can claim for.....

they should provide such a statement as part of their reply to your request under s77 of the CCA 1974:

77.--(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £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 total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

[katie3105]

thanks steven. I need to out in a defence and am really unsure on what to do.

 

I have been told the default notice is invalid. It has taken them 5 requests and at least 7 months to send the agreement and they have not sent a statement of account to tell how the amount they are claiming for has been calculated. I am unsure as to wether they are claiming for all of the interest for 360 months or wether they are allowed to if they have done.

 

I could really use someones advice as to what to do for a defence or wether I should try and write to solicitors and have the agreement reinstated and pay off the arrears.

 

Please help

[katie3105]

The defence needs to be in court by friday.