Egg (pre 05): Allocation Hearing Next Week: help with amended defence please

[downsouth]

This one has dragged on for nearly 2 years.

 

Egg credit card sold to CL Finance, claim through Howard Cowen, c£9k

 

Standard pre-2005 dodgy agreement.

 

The original claim stated I owed Barclaycard, in error, so I put the usual embarrassed defence in. This was back in Dec 2008. Case Stayed

 

Feb 2010 The Application to Lift the stay and Transfer granted without hearing. Subsequently AQ sent to me which I filled in & returned.

I am sent a copy of an 'Amended Particulars of Claim' dated Dec 2008 where the Claimant has amended to the correct Egg account.

 

The amended claim is:

"... for the sum of £XXXX.XX being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and Egg Banking Plc under ref ZZZZZ and assigned to the Claimant on the 20th October 2008. The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87(1) of the CCA1974..."

 

 

30 March 2010 when I get an Order from my local court that an allocation hearing is booked for 18 May:

 

I'm thinking I need to get an amended defence in before this date?

 

They have supplied the following copies of their evidence as directed by the allocation hearing order:

 

a) Copy signed std Egg dodgy agreement dated June 2004

b) Notice of assignment to DCA, dated 24 Nov 08 giving me until 1 Dec 08 to pay in full.

No Deed of Assignment from Egg by the way.

 

That's it. No default notice.

 

I've got from here the holes in the Egg agreement, I can deal with that bit, but I could do with a quick sentence or two dealing with the lack of Default Notice which I guess is quite important

 

Many thanks, and SORRY for the fact I've left this a bit late in the day!

 

Downsouth

Edited July 8, 2010 by downsouth
Clarify that CL Finance are the claimant.

[vint1954]

Have you issued them with a CPR 31.14 request for documents?

[vint1954]

Also have a read here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html

[downsouth]

I submitted a Request for Information CPR 18 back in Dec 2008, after receiving the claim and a separate request for copy agreement under s77/78.

 

I think I followed the correct procedure as advised on here back in 08.

 

I do not have any response from them in my comprehensive file.

 

ETA: Thanks for your links, I have read these, and can deal with the Agreement side of things thanks to your excellent thread there

[vint1954]

Here are a few bits on the need for a default notice and unlawful rescission including ref to high court cases.

 

There is nothing to sell on. The account is terminated after a faulty DN which means it has been rescinded ie puts both parties back where they were before the agreement, and the clause that states they cna sell it on is resinded with it. All they can claim after that is any arrears not the capital.

 

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 gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

It will be for them to prove they sent you a lawful DN and they have not one scrap of evidence that they did. Put them to strict proof of proof of postage as the key date in serving a DN is the date of receipt.

Just posting this up courtesy of The Shadow

 

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

 

1. 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.

 

2. 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

 

3. Further to point 2 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.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, 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 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 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).

 

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

 

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

 

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

 

Section 87. Need for Default Notice

 

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

 

(a) to terminate the Agreement, or

 

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

 

© to recover possession of any goods or land, or

 

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

 

(e) to enforce any security.

 

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

 

Section 88. Contents and effect of Default Notice

 

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

 

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

 

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

 

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

 

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

 

14. Furthermore, the 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.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a 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.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. 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.

[vint1954]

I submitted a Request for Information CPR 18 back in Dec 2008, after receiving the claim and a separate request for copy agreement under s77/78.

 

I think I followed the correct procedure as advised on here back in 08.

 

I do not have any response from them in my comprehensive file.

 

ETA: Thanks for your links, I have read these, and can deal with the Agreement side of things thanks to your excellent thread there

They shoud be pressed to supply the documents as requred, before you can defend fully.

 

If you bring that up at the hearing, the judge should order them to comply.

[downsouth]

vint, that was my initial thought but I've suddenly woken up with the hearing next week and, to encourage Cohen's not to attend, was thinking about putting an amended defence in.

 

Here's some more info:

 

On the AQ I finally received in Feb 2010 I answered in the 'Reasons' box for A Settlement:

1. There is no valid claim

2. It has already been over a year since my defence entered, and no correspondence from claimant at all including the CPR18 Request made and mentioned within my defence. THIS CLAIM SHOULD BE STRUCK OUT

The wording of the Allocation Hearing Order dated 30/3/10 states:

At the hearing the DJ will consider among other things:-

a) Claimant's request to allocate to Small Claims Track

b) Defendant's request under CPR Pt 18 (Defendant to file in court copy of request and any responses)

c) Whether Claimant has supplied a copy of the agreement to Defendant

d) The Claimant is to file in court and serve on Defendant at least 14 days before the hearing evidence as to the Defendant having entered into the credit agreement and as to notice of assignment.

So perhaps, at this stage, just turning up to court with my CPR18 request (there is no reply from claimant) will suffice?

[downsouth]

Is it likely Howard Cowen will send someone from Yorkshire to Sussex to attend this Allocation Hearing?

 

What could the court order if they don't attend?

[vint1954]

Well, the court are obviously taking note of the unsatisfied CPR request.

 

Have you submitted b) to the court, if not do so NOW.

 

Also advise the court that the claimant has not supplied a legible and complient agreement to you. And advise the court that the claimant has not complied with d) unless they have.

 

You need the Default Notice, a copy of the actual agreement, insisting that they produce the original in court and a copy of the Notice of assignment.

[downsouth]

Brilliant, thanks.

 

I haven't yet filed (b) into court: will do today. Should I also send a copy of what I send to the court, to Howard Cohens?

 

(They have complied with (d) by the way)

 

I shall get working on my letter to the court to file (b) and post it up here for approval

 

Cheers

ds

[vint1954]

No, they have asked for it to be filed in court.

 

If they don't turn up, bring up the dificulty in getting information under CPR from the claimant in order to file a full defence, and ask for a strike out.

[vint1954]

just to be sure about the situation:

 

You receive a CC claim.

 

You then request the document that they are to rely on in court, in order to file your defence. If you do not get them, you can only file an embarrassed defence.

 

You need:

The agreement and terms

when the account was openedand any document referred to in the agreement. This needs to be a copy of the original and insist that they produce the original at the hearing.

 

The terms as altered at each point that they were altered.

 

The Default Notice.

 

The Notice of assignment.

 

Once you have all of these, you can file a full defence, but not until.

[pt2537]

erm

 

Since there is a matter in the High Court which is relating to a challenge over Egg Plcs credit agreements

 

you may want to get your case stayed pending the outcome

 

cos if the High Court says the agreements unenforceable you win by default

[downsouth]

Thanks again. I did read that order as 'file in court' = bring to the hearing.

 

Thanks for the precis above. I will write that out just so I remember all that on the day!

 

OK, should I hand over a covering letter with the CPR18 request document - I had drafted this out anyway to hand over before the hearing which I'm not now going to do:

 

Dear Sirs,

Further to the ORDER by District Judge R dated 30 March 2010, please find attached a true copy of my request under CPR Pt18 to the claimant, per ORDER 1.b

My request was dated and posted 23 December 2008 and to date I have not received a reply to this request which should have been sent to me as requested within fourteen days.

I have not received a legible and complient copy of the agreement, nor any copy of any Default Notice which are referred to in the Claim.

In the absence of the requested evidence, I have therefore still not been able to fully defend this Claim

Yours faithfully

[pt2537]

Thanks again. I did read that order as 'file in court' = bring to the hearing.

 

Thanks for the precis above. I will write that out just so I remember all that on the day!

 

OK, should I hand over a covering letter with the CPR18 request document - I had drafted this out anyway to hand over before the hearing which I'm not now going to do:

 

Dear Sirs,

 

Further to the ORDER by District Judge R dated 30 March 2010, please find attached a true copy of my request under CPR Pt18 to the claimant, per ORDER 1.b

 

My request was dated and posted 23 December 2008 and to date I have not received a reply to this request which should have been sent to me as requested within fourteen days.

 

I have not received a legible and complient copy of the agreement, nor any copy of any Default Notice which are referred to in the Claim.

In the absence of the requested evidence, I have therefore still not been able to fully defend this Claim

 

Yours faithfully

 

Please see my comment above

[downsouth]

erm

 

Since there is a matter in the High Court which is relating to a challenge over Egg Plcs credit agreements

 

you may want to get your case stayed pending the outcome

 

cos if the High Court says the agreements unenforceable you win by default

 

Ooooh interesting. What with the timing (Alloc hearing is Tuesday), should I request this after this hearing if necessary ?

[downsouth]

pt2537, do you have details of the High Court test case that I can make reference to at court please? A search hasn't easily found it!

 

Thanks again

ds

[pt2537]

yes, it just so happens that, being the file handler on the case, i do

 

i will provide you the details, which MUST remain off this forum

[downsouth]

yes, it just so happens that, being the file handler on the case, i do

 

i will provide you the details, which MUST remain off this forum

 

You are a star PT: I can assure you of total confidentiality.

 

 

 

ETA: I have tried to PM you my email address PT, but your inbox is full!!!

Edited May 12, 2010 by downsouth

[pt2537]

Downsouth

 

Please remove these numbers from the claim number i sent you

 

N265_1005.indd they are not relevent

[downsouth]

Many many thanks PT: and amended as above.

 

 

So, what do we now reckon on this covering letter to accompany my copy CPR18 request, which I'm proposing to file into court at the Allocation Hearing on Tuesday?

 

Dear Sirs,

 

Further to the ORDER by District Judge R dated 30 March 2010, please find attached a true copy of my request under CPR Pt18 to the claimant, per ORDER 1.b

 

My request was dated and posted 23 December 2008 and to date I have not received a reply to this request which should have been sent to me as requested within fourteen days.

 

I have not received a legible and complient copy of the agreement, nor any copy of a Deed of Assignment issued by Egg Banking plc, nor any copy of any Default Notice, which together form the Claim.

Further to the above, I am aware of a High Court Test Case which concerns the wording of Credit Agreements issued by Egg Banking plc prior to 2005. The outcome of this Test Case could have a significant bearing on this Claim once I have been able to submit a full Defence, so may I respectfully request a further STAY on this Claim until after this Test Case.

 

The Test Case details are: (withheld info, ta PT)

 

Yours faithfully

 

 

My only concern with this approach is that I'm losing my chance to ask the Judge to strike the claim out because, after all this time, I am still unable to put a proper defence in.

 

I suppose he could still order that.

Edited May 12, 2010 by downsouth

[downsouth]

Just returned from the Allocation Hearing.

 

Claimant solr did attend, they were actually going to ask for judgment. It didn't go exactly to plan for the claimant solr.

 

I took great pleasure in verbally striking the solictor down when she referred to me in court as the debtor instead of defendant.

 

Judge ordered them to produce what I had originally asked for in my CPR18 request (solr claimed this had been sent to me 3 times, but no proof of any delivery of course - and I honestly do not recall ever receiving it at all and why would they send this stuff out voluntarily 3 times anyway?) and adjourned until way after the Test Case above. Claimant admitted they don't have a true copy of the Default Notice, but could produce a reconstituted default notice. I protested at this, but the Judge said that there is recent test case history of this and it would be acceptable. Really not happy about this - you just know all these reconstituted default notices will just happen to have spot-on dates

 

The Claimant solr asked for Small Claims track, this I agreed to, then she had the cheek to ask for costs for attending this hearing! The Judge rightly was having none of that.

 

pt2537 If you don't mind I'll be in touch after the test case to see how it all went wrt the legality of these Egg Pre05 agreements. Many thanks for your help thus far, and good luck if the outcome is also affecting you personally.

 

Still in one piece for now,

downsouth

[vint1954]

Just returned from the Allocation Hearing.

 

Claimant solr did attend, they were actually going to ask for judgment. It didn't go exactly to plan for the claimant solr.

 

I took great pleasure in verbally striking the solictor down when she referred to me in court as the debtor instead of defendant.

 

Judge ordered them to produce what I had originally asked for in my CPR18 request (solr claimed this had been sent to me 3 times, but no proof of any delivery of course - and I honestly do not recall ever receiving it at all and why would they send this stuff out voluntarily 3 times anyway?) and adjourned until way after the Test Case above. Claimant admitted they don't have a true copy of the Default Notice, but could produce a reconstituted default notice. I protested at this, but the Judge said that there is recent test case history of this and it would be acceptable. Really not happy about this - you just know all these reconstituted default notices will just happen to have spot-on dates

 

The Claimant solr asked for Small Claims track, this I agreed to, then she had the cheek to ask for costs for attending this hearing! The Judge rightly was having none of that.

 

pt2537 If you don't mind I'll be in touch after the test case to see how it all went wrt the legality of these Egg Pre05 agreements. Many thanks for your help thus far, and good luck if the outcome is also affecting you personally.

 

Still in one piece for now,

downsouth

He is probably getting his socks in a twist regarding reconstructed documents for s78 requests, information only. This is Carey v HSBC, but it might be worth finding out if there is another.

 

Obviously, you do not have the original DN? They would also have to prove that it was a reconstruction of a DN at the time it was issued, not a current one. They may have changed them recently to be complient!

[downsouth]

I'll be sure to hunt high and low for the DN, but it was apparantly issued in 2005. The last case I had (different bank) was won (before court) because not enough time was allowed to redress the default.

 

The judge very carefully worded the part of (her) order where a reconstituted DN would suffice if the original is not available - I'll be sure to post the wording up once I receive that order.

 

Anyway, I've still got the Pre-05 agreement as my main defence, fingers crossed for the outcome of that test case.

 

Cheers

ds

[pt2537]

well, they are talkin horlicks,

 

I will post you an argument that kills the reconstructed default notice dead as a dodo