N150 assistance needed...please? / **WON**

[NGEddie]

Hello people,

 

I must say this seems a very impressive and friendly site

 

To keep it brief, we have a CCJ pending from a loan, it is not just a case of us trying to get out of paying, far from it, wont go into detail if thats ok but creditor has been awful and gone for court action.

 

From advice and research it seems the default notice is defective on two counts, is it a case that we submit the defence stating for example a one line sentance saying they have not complied with legislation? I just got very concered when I read this thread and saw the defence that documan and creditcardmug had given the lady

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192940-hfo-have-sent-court.html

 

I have read in some, not sure how many, cases that it seems if a good enough defence is submitted then it may not even get to court?

 

Would you need to quote which section of the CCA they have not complied with on the defence?

 

Sorry for all the questions and thanks ahead for any replies.

 

E

[cymruambyth]

Hi I don't know if you can adapt this, but I have used it for a defective DN defence. When was this issued? Dates for length of time changed from 7 to 14 days on December 2006.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

21. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

22. Under the Interpretation Act 1978 Section 7, it states:

 

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.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

23. Further to point 22 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

24. The Default notice supplied by the Claimant is dated Thursday 10th April 2003, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 7 calendar days from Monday 14th April, namely Monday 21st April 2003, not the 7 calendar days from the date of the letter as stated in the Default Notice which would have been 17th April.

 

25. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 7 clear days to rectify the breach. I also 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).

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

 

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

 

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

 

Section 87. Need for Default Notice

 

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

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

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

 

Section 88. Contents and effect of Default Notice

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

[vjohn82]

Hello people,

 

I must say this seems a very impressive and friendly site

 

To keep it brief, we have a CCJ pending from a loan, it is not just a case of us trying to get out of paying, far from it, wont go into detail if thats ok but creditor has been awful and gone for court action.

 

From advice and research it seems the default notice is defective on two counts, is it a case that we submit the defence stating for example a one line sentance saying they have not complied with legislation? I just got very concered when I read this thread and saw the defence that documan and creditcardmug had given the lady

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192940-hfo-have-sent-court.html

 

I have read in some, not sure how many, cases that it seems if a good enough defence is submitted then it may not even get to court?

 

Would you need to quote which section of the CCA they have not complied with on the defence?

 

Sorry for all the questions and thanks ahead for any replies.

 

E

 

It would help if you can post up the actual documents you have in your possession.

 

Have they served a notice of assigment / default notice / credit agreement?

[NGEddie]

Thanks for that, omg its confusing!

 

I guess I could post it up, but I am very very concerned about the company seeing it and I have just a few days to get my defence done and sent. Maybe I could PM it to someone?

 

If it helps, they served the arrears notice, of two months, then the default, which lets say was written on the 1st of May, they stated we needed to pay the arrears of xxxx before the 15th May.

 

My understanding is they need to allow 14 days, not sure where it says clear working though? days, allowing for postage etc.... so on that premise what is the earliest date they could have stated to make it legal?

 

Is this really a big enough issue for them to fall down on? it seems so simple

 

Futhermore they have failed to underline the relavant words and write them in bold, as stated in Section 87(1) V and Vi

The thing I need to know, is when I send the defence in, do I just copy the default letter and highlight the mistakes in a colour, then on the form say refer to the part highlighted yellow, this fails to comply with section xxxxx and the part in organge fails to comply with xxxx, on this basis I see this as wasting the courts time and ask for the case to be dismissed?!?! Thats just purley off the top of my head and I expect totally wrong!

I really do appreacite any help you guys can give as I am currently not sleeping and having dreams about all this

[supasnooper]

Hi NGEddie, Welcome to CAG.

 

It would be good if you could post up the Particulars of Claim stated on the Court paperwork ( be vague with the amounts e.g. £5**.00 )

[NGEddie]

Thanks Supa, sorry for being thick but i cant see those words, I can PM you a copy of the front page if that helps?

[Pipster2797]

Supa means scan the documents you want to send by PM but black out any personal details so you arent identifed.

 

So if the papers say you owe £5687.49 mark it down as £5***.00

 

If you post up the Particular Of Claims form then everyone will be able to see it but you won't be identifed. that way you can get the best advice as sometimes the claimaints have very vague Claims forms that can be took apart with your defence.

[DonkeyB]

Subbing

[MandM]

Subbing

[supasnooper]

The Particulars of Claim are located at the bottom of the Left hand Side of the N1 form.

Have a look at this one - http://www.consumeractiongroup.co.uk/forum/show-post/post-1721013.html

 

 

I'd also read the thread as it contains some very good info.

 

I'd also advise reading these two threads as well -

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court.html

 

 

Have you completed the Acknowledgment of Service (if the Court paperwork is from Northampton) ?

Edited December 9, 2009 by supasnooper

[supasnooper]

The document that you PM'd me is a Default Notice ....but was it sent by the original creditor ?

 

BTW it is defective and I'll return to that later.

 

The court document relates to the submission of Allocation Questionnaires and states what the result will be due to the failure to submit them on time.

 

At the moment, we could do with seeing the Particulars of Claim submitted by the claimant, a copy of which should have been sent to you.

[supasnooper]

Have you sent off a CCA request to the original creditor - letter 8

 

The Consumer Forums - Debt collectors

Edited December 9, 2009 by supasnooper

[NGEddie]

Have you sent off a CCA request to the original creditor (letter 8) ?

 

The Consumer Forums - Debt collectors

 

 

I have not, do I need to?

[NGEddie]

The POC as requested :-

 

The Claimants Claim is for the sum of XXXX being monies due and payable under the terms of a written finance agreement entered into between the parties on xxxx full particulars of which have been supplied to the Defendant. The Claimant also claims interest thereon pursuant to Section 69 of the County Court Act 1984 at the rate of xx per annum

[cymruambyth]

I have not, do I need to?

 

Send this letter, unsigned with a £1 p.o. to see if they have a legally enforceable agreement

[NGEddie]

They did attatch a copy of the agreement to the court papers when we got it through, so do I still need to send the letter? Or rather what would be hope for as an outcome by sending it, sorry I dont understand!

[supasnooper]

I would advise that you do send the CCA request letter....just to compare what document the Claimant has and what the creditor has.

 

Can you post up the agreement on the thread omitting any personal details, account numbers etc.

 

Was the Default Notice sent by the original creditor ?

[NGEddie]

Ok I will copy it and send later, and yes the DN was sent by the original creditor, it is too them taking us to court via their solicitor, it was never given to a DCA or anything.

 

Thanks again

[supasnooper]

Ok, if the DN was sent by the original creditor then they haven't complied with s87 Consumer Credit Act 1974.

 

Have a read of this post to see why - B_R_W's post on DN's

 

Although the DN is defective, it would be good to look at the agreement that you've been sent to see if it is enforceable.

[NGEddie]

Am sending the contract over shortly, just had a quick look at BRW's post, thats long!

[supasnooper]

Am sending the contract over shortly, just had a quick look at BRW's post, thats long!

 

.............but tells you what you will need to know.

[NGEddie]

Have read it all, a bit hard for me to get my head around I must say as lots of imformation there

 

Did you see the copies of the agreement I sent?

[NGEddie]

Bumping this again incase anyone can give help as am paning a little as to what my defence will be and how to write it!

[banker_rhymes_with]

Hello NGEddie!

 

OK, thanks for the PM.

 

People here will help, but the very best thing you can do is take a deep breath, then concentrate on setting out in detail where you are with this.

 

Time is tight, but you have an Army of people here who will try to help you, and they can only do so if you get the key facts set out first.

 

I do, fully, appreciate that you need to avoid letting the enemy spot what you are doing here but, so far, even I can't tell who you are or what the Claim is about, so I think you are safe at the moment. The people after you almost certainly won't know you are here.

 

OK, use common sense, and avoid saying anything that obviously links things together between you and them.

 

For example:

 

(1) On 15/11/2009 Bellend Bank issued a Claim against me to enforce a Personal Loan Regulated by The Consumer Credit Act 1974. They are after £7500, and enclosed a copy of the Agreement and a copy of the s87(1) Default Notice.

 

(2) The Particulars of Claim stated:

 

Blaa, Blaa

 

(3) Before 14 days, I did send in my Acknowledgement of Service, saying I would Defend the lot.

 

(4) I now have x many Days before I must file my Defence, the Deadline for which is xx/12/2009.

 

If you see what I am doing, I'm setting out the basics.

 

We also need to know what year the thing (Loan, Credit Card, whatever it is) was taken out. If it was before mid 2007, but after early 2006, then we need to know the exact date, because that can be VIP.

 

The key is to get things organised, and then if we need to know more, then we will ask.

 

Once we get a picture, we can get straight down to it, and help you thrash out what you need to meet the Deadline.

 

OK, over to you. Don't rush, the clearer you get it started and set out, the faster we'll get to the help you need.

 

Cheers,

BRW

[NGEddie]

Hi and thanks for the help.

 

Ok, here goes

 

1. Loan taken out June last year, deferred for a year as buy now pay nothing scheme etc... Regulated by CCA 1974

 

2. The reasons behind no longer being able to pay dont hold up as defence I understand as its more an ethical issue that legal I was told?

 

3. So arrears notice sent, two missed payments, default notice issued, one threatening call not wanting to listen to a lesser payment plan, next thing court papers arrive.

 

4. Particulars of Claim are :-

 

The Claimants Claim is for the sum of XXXX being monies due and payable under the terms of a written finance agreement entered into between the parties on xxxx full particulars of which have been supplied to the Defendant. The Claimant also claims interest thereon pursuant to Section 69 of the County Court Act 1984 at the rate of xx per annum

 

5. Sent the Acknowledgement back saying Defending the whole amount

 

6. At the very lastest we could send the defence form off Saturday morning, recorded so shoud arrive Monday morning which gives a couple of days breathing space.

 

Thanks very much, anymore information just ask

 

E