Help require with Default Judgement/Redetermination/Set Aside/Interim Charging Order/Final Charging Order

[indebtandharrased]

Hi

 

I hope I'm not too late to do something about a recent CCJ (in default)

 

Background:

 

Fairly recently I was taken to court for a credit card debt. Having checked in here first (you will see I joined in October), I initially defended with an 'embarassed' defence as I received only basic particulars of claim issued through Northampton Bulk Centre - having made a request under CPR31.16 for a copy of the alleged CCA which did not arrive until after my deadline to file a defence. My actions of requesting under CPR31 and submitting a defence provoked the familiar abusive, bullying, intimidating communications from the Claimant's solicitors.

 

After a month or so they finally served a more detailed POC and I received my copy complete with their court bundle evidence/exhibits. They were seeking Summary Judgement.

 

Shortly before the deadline for me submitting my amended defence I lost my resolve and caved in and submitted my N9A admission, asking for time to pay, to the court and the Claimant's solicitors. I attended the hearing, as I had not been informed it was cancelled, so that I could put my case to the DJ. The Claimant had contacted the court on the morning of the hearing to say it wouldn't be necessary - surprise surprise they didn't tell me and so wasted half a day of my time.

 

Just over 2 months later I have received a CCJ against me (in default) stating "You have not replied to the claim form". I thought I had by returning my N9A and on calling the court they agreed they had all the papers in the court file?

 

After a couple of days of research to find out what I could/should do, and within the 14 days permitted, I wrote to the court manager requesting a re-determination hearing, as I cannot afford to pay the amount on the judgement in one lump (suffice to say it is over £8,000) and I wanted to make the points I was going to make to the DJ at the previous hearing which was "cancelled" by the other side. I had already requested time to pay on my N9A; I'm still not sure why this hadn't been taken into account when the Judgement was given?

 

On receiving the Interim Charging Order (with notice of a hearing in less than a month) I began researching how I could/should respond at the hearing. However, I also took a fresh look at the Claimants POC and evidence, only to find that the Default Notice issued (or the copy of it they sent me and in the Court bundle) does not allow the required number of days - it's only a day short if sent first class, as they claim, or 3 days short if sent 2nd class. I spent some time yesterday and found the original DN - and the envelope. It was sent 2nd class!

 

This brings things up to date, more or less.

 

Moving on:

 

During this week and over the weekend (so far) I have been trying to decide what to do, and in what order. Can any of you help me please?

 

I propose:

 

1) to apply for the Judgment in Default to be set aside, with a defence that bringing the claim to court was unlawful because the DN is deffective

 

2) to ask for the above to be heard on the same day but before the hearing for the Final Charging Order, so that should the set aside be granted there will be no need to proceed with the Final Charging order and the interim charging order can be disposed of

 

3) Should I not succeed in having the judgement set aside, to have the re-determination hearing I have requested follow the set aside hearing, but preceed the Final Charging Order hearing, so that I will hopefully have a Judgement giving me time to pay. This would mean that if I did not miss any payments ordered by the court I could ask that if the Final Charging Order was given that there could be conditions attached to the Charging Order such that no Order for Sale could be sought by the Claimant if I was keeping up the payments agreed in the Judgement.

 

I think that covers it. I guess, if I could, I would like to simplify the above schedule by not having all of these issues dealt with in court inside a month. If I can't I can see me spending huge amount of time over the next couple of weeks doing nothing but preparing my cases and papers for court.

 

So, first I would ask for any comments and guidance about the sequence of events so far and what I propose and if there is any way I can ask the court for more time to prepare for the possibly 3 hearings.

 

Secondly, any help and advice with winning a set aside of the Judgement

 

Thirdly, same as above but for re-determination

 

Fourthly, fighting the Charging order and avoiding any possible order for sale that might follow.

 

I know I am asking a lot - but please help with your best advice if you can.

 

Thanks

Edited June 27, 2010 by indebtandharrased

[miss muppet]

Hi until the big guns come along (quiet in here on a Sunday night) I'm hoping the following link might be helpful:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241308-fighting-charging-order-mbna.html

[indebtandharrased]

Hi until the big guns come along (quiet in here on a Sunday night) I'm hoping the following link might be helpful:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241308-fighting-charging-order-mbna.html

 

Thanks Miss Muppet! You have broken my duck - I was feeling all alone!

[indebtandharrased]

I found this after following your link

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/145272-am-i-too-late-2.html#post1534002

 

This bit concerns me:

 

"It should be noted, however, that in the case of Ropaigealach V Allied Irish Bank CA Nov 2001 where an instalment order is made AFTER an interim charging order has been made, a court has the jurisdiction to make a Charging Order final."

 

It would seem to me I have to get the judgement set aside, otherwise I have little hope of getting a re-determinaton to installments because the Claimants already have obtained an interim charge order, despite my application for a redetermination prior to their hearing for an interim charging order.

 

Comments from the experts please!

[supasnooper]

Your plan is correct.

 

have a look at the links below -

 

Setting Aside a CCJ -

 

A Guide To Setting Aside CCJ's You Never Received

CCJ removal inc. step by step guide

Applying for a Set-aside

Spamalot - CCJ and interest on debt. ***WON***

Setting aside the original CCJ of your CCA

 

Finally, my understanding of Ropaigealach V Allied Irish Bank CA Nov 2001 is that the Charging Order can be made final if the forthwith payment (full payment) has not been made; or if a monthly repayment option specified by the Court at the time of the Judgment being handed down has been missed.

A redetermination hearing, if applied for, must be heard first...... and of course any application to set aside the CCJ, before a Charging Order can be made final.

[indebtandharrased]

Thank you supersnooper.

 

When I make my application for the set aside, do I have to supply my own evidence, or can I simply refer to the evidence used by the Claimant, as it is the defect in their evidence (the deffective DN) that I wish to challenge?

 

I might want to use the actual Default Notice I received rather than the copy supplied in the Claimant's bundle (should they wish to claim 'human error' about the dates on it when reproducing the copy); would I have to mention that or could it be considered 'one and the same' as the evidence already produced by the claimant?

 

Finally, is there any case law I can use where a defective DN, dates in particular, has been key?

[supasnooper]

You will need to supply your own evidence but refer to their use of the Default Notice in the claim.

 

If the DN you received is defective, then you MUST use that one and then back up the point using the Claimants copy.

 

There is no case law as such but use the application of Consumer Credit Law, in particular s87 Consumer Credit Act 1974,

Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and The Interpretation Act 1978

have a look at this link - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[citizenB]

Hi.. in response to your request. It will be a Witness statement you provide alonside your set aside application. Which is basically a beefed up more detailed defence.

 

It should be be set out chronologically.

 

I have posted below a defence that was produced specifically for a dodgy default notice. It has all the information you require and would just need reorganising to suit your own situation. I will have a hunt round to see if there is anything else that would be useful to youl.

 

 

 

 

 

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.

[indebtandharrased]

Hi all

 

And thanks for all your help so far.

 

I have cobbled together a defence/witness statement but need to get it reviewed/critiqued/edited as soon as possible. As I understand it, applications for a set aside need to be done 'promptly' and I would like to get it in the post tomorrow - or maybe take it to court myself even.

 

I hope it is attached ok, and I look forward to your feedback. Thanks in anticipation

 

DRAFT DEFENCE

Introduction

1. This application to set aside the judgement in default issued on 7th June 2010 at the XXXXXXX county court is made because the defendant, being a layman and litigant in person and without the knowledge or assistance of legal advice, believed that the claim brought against him was enforceable by The Court.

2. The Defendant has made this application as soon as he has been made aware that the claimant had not served a valid Default Notice in compliance with the Consumer Credit Act 1974.

4. The Defendant believes he has a valid defence and has a very good chance of succeeding.

The defendant responds to the Particulars Of Claim as follows:

Default Notice and Termination

 

1. The Defendant acknowledges receipt of Default Notice dated 9th October 2009 from the claimant.

 

2. The Claimant should have, under Section 87(1) of the Consumer Credit Act 1974, served a valid Default Notice before they could demand early payment of sums not yet due under a Regulated Credit Agreement.

3. The Claimant claims that the Default Notice (at CREDITCARDCOMPNY4 – a recreated copy attached to the Claim, and at INDEBTANDHARRASED1 – the original document attached to this Defence) was sent by First Class post. The defendant denies that the default notice was sent by way of First Class post and at INDEBTANDHARRASED2 (attached to this Defence) is the envelope used by the Claimant to send the default notice. As can be seen the envelope is printed with the postal indicia of a private mail company, UKMAIL and also with an ‘S’, which indicates the letter be processed and delivered as Second Class mail.

 

4. The Default notice issued by the Claimant was dated 9th October 2009, which was a Friday. The notice was sent Second Class post and would therefore be accepted as having been delivered, after four working days, on the 15th October 2009 and the Defendant accepts that it probably was received on this date.

 

5. 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."

 

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

 

6. The Default Notice sent by the Claimant is dated 9th October 2009 – a Friday. To allow service in line with the statutory requirements outlined in point 5 above, four working days were required to allow for 2nd Class postage (excluding Saturday and Sunday). Thus the remedy date should be 14 calendar days from 15th October 2009, namely 29th October 2009. However the default notice received (INDEBTANDHARRASED – 1) specifies the date by which the default had to be remedied as 26th October 2009. Even had the Default Notice been sent by First Class post as the Claimant claims, the Default Notice would still be defective as the date for remedy contained in the default notice should have been 27th October 2009 to allow for service after 2 working days plus the minimum of 14 days accorded by Statute for remedy.

7. To comply with the regulations and to be valid as to its form a Default Notice should state the actual date by which the breach is to be remedied, as stated in the:

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561):-

3 A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

8. The prescribed format for A Default Notice 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); in these regulations it clearly states that a date for remedy must be given and it must be at least 14 days from the date of service.

“The debtor must be left in no doubt as to what he has done wrong and what he must do, and by what date he must do it in order to remedy the default”:

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". [per Kennedy L J in Woodchester Lease Management Services Ltd v Swain and Co - [1998]]

 

9. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [1998]) but if the agreement is then terminated by the creditor it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

10. 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.

 

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

Section 88. Contents and effect of Default Notice

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

 

12. The word must makes clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

13. 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.

 

14. Again, 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 as stated by 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 the Defendant as it failed to allow the required time to remedy the alleged default.

 

15. Under Section 87 of The Act, the Claimant’s failure to issue a valid Default Notice clearly prevents a right of action and also makes any termination of the Agreement unlawful. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant did not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully without issuing a fully compliant and effective Default Notice.

 

16. The Agreement was 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.

 

 

Edited June 29, 2010 by indebtandharrased

[indebtandharrased]

Respecfully asking for some comment on the above - I need to get it to the court by the end of this week at the very latest!

 

Thanks

[citizenB]

Hi, I see you managed to post it ok.

 

Just having a look. I think you will be able to edit out some of it because an actual date was stated.. albeit the incorrect date

[indebtandharrased]

Thanks CB

 

I also need to know how to wrap it up - something like:

 

"as the claim has no real prospect of success the defendant request that the claim be struck out"

 

or the legalese version of that!

 

And how do judges react to bolding/underlining - to they object? Or can they safely be used to highlight important (to me) words or passages?

[citizenB]

Ok, first of all this will be a Witness statement not a Draft Defence. You should head your page as I have set out below I have made one or two amendments.. But I think you need more people to comment. I will see if supasnooper is about.

 

Filed on behalf of: Defendant

Witness: Indebtandharrassed

Number: 1st

Exhibits: IDAH 1, 2, etc

Date:

IN THE ????? COUNTY COURT Claim No: ??????

BETWEEN:

CREDITOR

Claimant

and

INDEBTANDHARRASSED

Defendant

_________________________________________________________________

WITNESS STATEMENT OF INDEBTANDHARRASSED

IN SUPPORT OF APPLICATION FOR SET ASIDE OF JUDGMENT

________________________________________________________________

 

Introduction

I, Indebtandharrassed, of ADDRESS, will state as follows:

 

1. I am the Defendant in these proceedings. I make this Witness statement in support of my application to set aside the judgement in default issued against me on 7th June 2010 at the XXXXXXX county court.

2. This application is made because the defendant, being a layman and litigant in person and without the knowledge or assistance of legal advice, believed that the claim brought against him by NAME OF CREDITOR was enforceable by The Court.

3. The Defendant has made this application as soon as he has was made aware that the Claimant had not served a valid Default Notice in compliance with the Consumer Credit Act 1974.

4. The Defendant believes he has a valid defence and has a very good chance of succeeding.

 

The defendant responds to the Particulars Of Claim as follows:

Default Notice and Termination

 

5. The Defendant acknowledges receipt of Default Notice dated 9th October 2009 from the claimant.

 

6. The Claimant should have, under Section 87(1) of the Consumer Credit Act 1974, served a valid Default Notice before they could demand early payment of sums not yet due under a Regulated Credit Agreement.

 

7. The Claimant claims that the Default Notice (at CCC4 – a recreated copy attached to the Claim, and at IDAH1 – the original document attached to this Defence) was sent by First Class post.

7a. The Defendant denies that the Default Notice was sent by way of First Class post and at IIDAH2 (attached to this Defence) is the envelope used by the Claimant to send the Default Notice. As can be seen the envelope is printed with the postal indicia of a private mail company, UKMAIL and also with an ‘S’, which indicates the letter be processed and delivered as Second Class mail.

 

8. The Default Notice issued by the Claimant was dated 9th October 2009, which was a Friday. The notice was sent Second Class post and would therefore be accepted as having been delivered, after four working days, on the 15th October 2009 and the Defendant accepts that it probably was received on this date.

 

9. 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."

 

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

 

10. The Default Notice sent by the Claimant is dated 9th October 2009 – a Friday. To allow service in line with the statutory requirements outlined in point 9 above, four working days were required to allow for 2nd Class postage (excluding Saturday and Sunday). Thus the remedy date should be 14 calendar days from 15th October 2009, namely 29th October 2009. However the default notice received (IDAH – 1) specifies the date by which the default had to be remedied as 26th October 2009. Even had the Default Notice been sent by First Class post as the Claimant claims, the Default Notice would still be defective as the date for remedy contained in the default notice should have been 27th October 2009 to allow for service after 2 working days plus the minimum of 14 days accorded by Statute for remedy.

11. To comply with the regulations and to be valid as to its form a Default Notice should state the actual date by which the breach is to be remedied, as stated in the:

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561):-

3 A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

12. The prescribed format for A Default Notice 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); in these regulations it clearly states that a date for remedy must be given and it must be at least 14 days from the date of service.

 

“The debtor must be left in no doubt as to what he has done wrong and what he must do, and by what date he must do it in order to remedy the default”:

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". [per Kennedy L J in Woodchester Lease Management Services Ltd v Swain and Co - [1998]]

 

13. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [1998]) but if the agreement is then terminated by the creditor it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

14. 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.

 

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

Section 88. Contents and effect of Default Notice

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

 

16. The word must makes clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

17. 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.

 

18. Again, 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 as stated by 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 the Defendant as it failed to allow the required time to remedy the alleged default.

 

19. Under Section 87 of The Act, the Claimant’s failure to issue a valid Default Notice clearly prevents a right of action and also makes any termination of the Agreement unlawful. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant did not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully without issuing a fully compliant and effective Default Notice.

 

20. The Agreement was 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.

[indebtandharrased]

Looks good to me - thanks

[supasnooper]

Please do not underline or use bold type to embellish a statement - it is frowned upon.

 

Use Citizen B's draft as a basis for the Witness Statement

 

Here's some links to how a WS should be set out -

 

pt2537's guide to Witness Statement format

 

 

pt2537's guide to Witness Statement content

 

 

Witness Statement Exhibit Cover

 

and

 

BRW's post on What to pack for a day in court

Edited June 29, 2010 by supasnooper
addition

[indebtandharrased]

Help again!

 

I have only just noticed that the ACTUAL DN I received is QUITE different from the 'recreated' copy filed with the claim.

 

1) On the original the opening paragraph is fundamentally different and refers to paragraph 8f of the credit card agreement while the 'copy' says paragraph 8.

 

2) The original says I must pay the full amount of my outstanding balance which is £xxx by 26th October 2009. Copy says only the overdue payments by the remedy dat, then says 'Your account balance is currently £xxx."

 

Incidently, the relevent paragraphs 8 and 8f are not on the original agreement but only on the latest T & Cs issued post 2006 (card agreement pre-dates that), according to the copies filed with the claim

 

 

So:

 

i) should I change my witness statement, pointing out the differences?

 

ii) iIs asking for the full balance to remedy the breach a lawful request in a DN?

 

 

Thanks..........

[indebtandharrased]

OK - I have a go myself by modifying/extending point 14 as follows:

 

14. 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.

 

14a. The fourth sentence of the first paragraph of the Default Notice sent by the Claimant (IDAH 1) says “A stop has been placed on your card and a default has now been registered against this account at the credit reference agencies”. Both of which actions by the Claimant would appear to be in breach of Section 87(1)(d) as the actions taken by the Claimant either treat the Defendant’s rights in the agreement as restricted, terminated or both.

 

14b. The second paragraph of the Default Notice sent by the Claimant (IDAH 1) says “in order to remedy this breach, you must pay the full amount of your outstanding balance which is £XXXXXX.XX” which would appear to be in breach of both Section 87(1) (b) and (d) as remedy requires payment not only of arrears, which are made up of overdue payments, interest and charges (the total is itemised on CCC 4 as being £XXXX.XX) but also early payment of the balance. Under the Act a Valid Default Notice and a means of remedy must be available to the Debtor before a demand for early repayment/repayment in full can be made.

Edited June 29, 2010 by indebtandharrased

[citizenB]

Help again!

 

I have only just noticed that the ACTUAL DN I received is QUITE different from the 'recreated' copy filed with the claim.

 

1) On the original the opening paragraph is fundamentally different and refers to paragraph 8f of the credit card agreement while the 'copy' says paragraph 8.

 

2) The original says I must pay the full amount of my outstanding balance which is £xxx by 26th October 2009. Copy says only the overdue payments by the remedy dat, then says 'Your account balance is currently £xxx."

 

Incidently, the relevent paragraphs 8 and 8f are not on the original agreement but only on the latest T & Cs issued post 2006 (card agreement pre-dates that), according to the copies filed with the claim

 

 

So:

 

i) should I change my witness statement, pointing out the differences?

 

ii) iIs asking for the full balance to remedy the breach a lawful request in a DN?

 

 

Thanks..........

 

 

Yes, they cannot ask for the full balance on a Default notice.. it can only be arrears that are genuinely due at that particular date.

 

It might be worth you sending a private message to either diddydicky or vint1954 (or both) and asking them to look in on you. They are the guys with the answers where Default Notices are concerned.

[vint1954]

. The Claimant should have, under Section 87(1) of the Consumer Credit Act 1974, served a valid Default Notice before they could demand early payment of sums not yet due under a Regulated Credit Agreement or take enforcement action.

 

And point 6 should maybe add that the claimant is put to strict proof that the DN was actually posted on that date. Do you recall when you actually received it?

 

I have only just noticed that the ACTUAL DN I received is QUITE different from the 'recreated' copy filed with the claim. You need to note this in your WS as being materially altered from the original.

 

1) On the original the opening paragraph is fundamentally different and refers to paragraph 8f of the credit card agreement while the 'copy' says paragraph 8.

 

Note this as referring to non existent conditions.

 

2) The original says I must pay the full amount of my outstanding balance which is £xxx by 26th October 2009. Copy says only the overdue payments by the remedy dat, then says 'Your account balance is currently £xxx."

 

That will be a killer for them if your application is successsful, as CB has said.

 

Incidently, the relevent paragraphs 8 and 8f are not on the original agreement but only on the latest T & Cs issued post 2006 (card agreement pre-dates that), according to the copies filed with the claim

 

This sounds like MBNA. They must refer to the exact clause that has been broken. The original DN is the one to go by

Vint

[indebtandharrased]

Thanks vint1954 - you have a PM from me

 

I had to submit my WS to the court today - so as to be 'prompt' in asking for set aside (23 days since the Judgment)

 

I'd happily let you see a copy and would appreciate your review, should you have the time to do that.

Edited June 30, 2010 by indebtandharrased

[diddydicky]

part of skeletal argument that I would use

 

1/ the witness XXXXXX has made a sworn statement that the evidence in his/her statement is true.

 

2/ The witness has claimed that a DN placed as evidence before this court is a Reconstructed" DN and that it is a true copy of the original

 

3/ I produce the original DN in my exhibit XXXX/XX.

 

4/ The court will note that the original DN is invalid in respect of the fact that it demands repayment of the entire outstanding balance of the account in order to remedy the DN- thus making it invalid

 

(name any other invalidations)#

 

5/ The "re constructed" DN which the claimants witness swears is a true copy of the original- not only contains a different amount stated as being required to remedy the breach- but rather surprisingly the claimant seems to have "accidently" managed to state the arrears that were outstanding at the time which should have appeared in the DN.

 

(name any other deviations in the copy from the original)

 

6/ I invite the court to the conclusion that this is no accident- or co incidence- rather it is a deliberate and cynical attempt by the claimant not to "re construct" a true copy of a document but instead to "construct a self serving and fabricated document" in an attempt to deceive the court into the beleif that the original DN was a valid DN

 

7. It is within my knowledge from extensive research that creditors often seek to envice the courts that as major national finance companies, their documentation is such that they could never possibly make mistakes or accidentally advance funds or issue credit cards in error

 

 

it is often difficult for LIP's like myself to obtain the evidence to disprove such claims but in this instance i have been fortunate in being able to locate the original DN to prove my point

 

8/ I invite the court to the conclusion that the witness has perjured themselves in offering what is clearly a fabricated document as evidence to the court under oath and is in contempt of the court

 

I invite the court to the conclusion that none of the claimants evidence can be regarded as reliable or trustworthy

[wycombe]

Subbing,

 

DD's statement is to the point and should hit them right between the eyes!

[indebtandharrased]

I have decided to keep DDs suggestions from 6/ onwards for the hearing if I get one, which I think I should based on the rest.

 

If anyone thinks that's a bad idea, please say so.

 

I had to submit my application on the 30th - so as to be 'prompt' - and did so without those statements. If the judgement does get set aside then I believe both sides will get time to submit their arguments before my defence is heard at a susequent hearing. If that's correct, I guess I could add DDs extra ponts then. Is that the case, or am I wrong about that?

[vint1954]

I have decided to keep DDs suggestions from 6/ onwards for the hearing if I get one, which I think I should based on the rest.

 

If anyone thinks that's a bad idea, please say so.

 

I had to submit my application on the 30th - so as to be 'prompt' - and did so without those statements. If the judgement does get set aside then I believe both sides will get time to submit their arguments before my defence is heard at a susequent hearing. If that's correct, I guess I could add DDs extra ponts then. Is that the case, or am I wrong about that?

The point of the full WS, is to not only discredit their DN, but all of their evidence!

[indebtandharrased]

Thanks vint1954

 

Sadly you suggestions came a day after I took the application to Court. The best I can do is use them later on if I get the chance.

 

I have received notice that my application for set aside will be heard. I will hopefully get the chance to mention my doubts about their other evidence (based on your suggestions) at the hearing.

 

I'm not sure about the process, but as I understand it the first hearing will be followed by another hearing before which both sides will have time to submit their case and I can use what you have suggested in a fuller defence for that.

 

Please let me know if I'm wrong about that and if so, how you suggest I play this.