Right, been doing ok up to this part and now a bit stuck

IM issued proceedings against be for WF. The POCs were vague at most, no information of account number, just amounts. I filed a holding defence sayin I had no idea what they were on about.

Just a side issue

I did write to Welcome Finance in August telling them I was struggling like bob to make the payment. I made them a pro rata offer but they said I had to go to their office to discuss. I said I couldnt do that.

I literally sat and waited for the default notice. I did because I knew they were a bit lapse in sending such document.

I then received the court docs from Irwin and now they are filing for summary judgemant as my defence has no chance of success (Er, I havent filed one yet)

On the 10th I sent the following CPR request

I am aware of your request for a summary judgement which is to be held at Barnsley County Court on the 19th August 2008. As I explained in my defence, I was unaware of the accounts you referred too. I am also confused as in your witness statements and of Roisn Sinead McGlinn and your Appendix A dated 11th July 2008 you list the defendant as . Have you confused your claim with me with a customer called ? I am actually embarrassed by the lack of professionalism your company has shown towards the claim. To enable me to file a defence and counter-claim, I require specific information regarding the accounts to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This information must be furnished by the 14/8/2008.Which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an order enforcing your compliance will be sought. If the information is not provided by 14th August 2008 this will be raised at the hearing of August 19th 2008 and an application for costs.

The following information is required:-

I hereby request all data that Welcome Finance Ltd hold on me from all relevant filing systems, to include a complete list of all transactions and charges on my account held with Welcome Finance Ltd. I also require a transcript of all recorded phone calls pertinent to the accounts and all notes made in relation to those calls.

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of Welcome Finance or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts held with Welcome Finance.

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

All data in respect of this account held in the relevant filing systems of Welcome Finance, including details of all telephone calls made by your organisation to my home telephone number and notes made in respect of those calls. This is of the utmost importance.

Specific details of the fees/charges levied in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied

A true copy of any Default Notice issued in respect of said accounts.

I look forward to your co-operation in this matter and receiving the documentation 14th August 2008. Additionally, as the information requested contains sensitive personal details, I expect it to be sent by guaranteed next day delivery, to ensure its safe arrival.

I have received a letter from them which states Apart from your request for a copy of the default notice and statement of account, the request you have made is not reasonably Necessary and Proportionate. If you do require the other documents please make a subject access request and pay the relevant fee (No mention of what it is) and we will pass your request to our client to deal.

Now the beauty, "Our client has advised that they unable to provide a copy of the default Notice, however, we enclose a screen print from their system which shows that the default notice was issued on 19th December 2007.

I never ever received this. And without showing my hand, I think I can prove it from their screen shot.

However, proving or not

A. I dont think the information requested is unreasonable

B. They are wanting to change the amount claim to 9k rather than the £7k they originally claimed

C. They havent covered the issue of the wrong name on the Appendix A or the witness statements

D. They cannot provide a copy of the default notice.

Any Ideas please thoguh I have a couple

I am in court on Tuesday

Hi Isiris

Can you Post up the Claimants P.O.C and a copy of the the holding defence you submitted?

Regrds

Andy;)

By an agreement entered into between the claimant and the defendant, the claimant has failed to pay the sum of £7518 or any part therof (I have made payments on the account, went I was struggling I contacted them)

The claimant has requested payment but the defendant has refused or delayed to pay. (I wrote to them telling them I was struggling and made an offer so hardly refusing) The claimant claims interes at a rate of 8% in pursuant to the county courts act from && && && until judgement or sooner payment. Costs

Now they have changed the amount they wish to claim to nearly 10K which would be the total amount payable if the loan ran the term of 48 months. Can they do this if the laond is 2 years old the current balance is £7500 but they want to claim the interest on the loan PLUS the Section 69 interest too.

My holding defence ran on the lines of

The defendant is perplexed by the claim submitted. The defendant has 3 accounts with the claimant yet the Particulars of Claim fails to identify to which account it refers. The claimant is surprised that the claimants solicitor is charging £100 to submitted such a poorly submitted claim.

Upon receipt of further information to help the defendant identify the account that the claim refers too, the defendant reserves the right to ammend his defence with the courts permission

Thanks for your help

I also sent a fax to the court that said

The defendant requests that the claim be struck out. The claim has been prepared by a well known group of solicitors and in the view of the defendant fails in numerous points in accordance with CPR 1.4

1. No reference to any account number

2 No break down of money owed, just a figure

3 No reference to when the agreement was entered

Also, as a further side point, They sent me a LBA second class, dated 11/1/2008. This is a Friday. I received the letter on the 16th January 2008. It gave me 7 days to repay the amount. The claim was Issued on the 22nd January 2008.

Is 7 days resonable

Is 7 days on a letter seeing as it was sent second class.

Is 7 days reasonable as it was the first letter I have ever received from them.

Again, many thanks

Hi

To be brutally honest I think its your defence and the manner that which you have responded that as let you down in the case.I would seriously consider amending your defence.When a claim is issued you need to respond in a set way and ,submit a defence that refutes the claimants P.O.C. Nothing more arguments are best kept for a Counter Claim if any

It looks like the Mitchell Brothers have got a head of you in this instance .

Have you filled your AQ what did you state in it? have you had sight of their AQ? How did you respond.

Your post is very confusing you state that you have to attend an hearing next week what is that for.Have you given directions via your AQ?

If you can put a little skin on the bones to enable further advise.

Regards

Andy;)

Andy

No probs

IM have a hearing for a summary judgement on the grounds I have no defence and no chance of winning. Like I said, I didnt know what account they referred too.

I have filed my allocation questionaire and put the following

The defendant intends to dispute the legality of raising this claim in accordance with the consumer credit act. Also, the claim includes charges which fall under the remit of the OFT test case tbeing held in the High Court In London. This case has caused blanket stays in claims for charges pending the final test case.

Thanks again

Also, after looking around the site, am I correct in thinking that they cant claim setion 69 interest as the debt is regulated by the CCA

Andy

 

No probs

 

IM have a hearing for a summary judgement on the grounds I have no defence and no chance of winning. Like I said, I didnt know what account they referred too. Nobody ever does they rarely state account numbers was this a Northampton Bulk Claim?

 

I have filed my allocation questionaire and put the following

 

The defendant intends to dispute the legality of raising this claim in accordance with the consumer credit act. Also, the claim includes charges which fall under the remit of the OFT test case tbeing held in the High Court In London. This case has caused blanket stays in claims for charges pending the final test case.

 

Thanks again

 

 

 

Also, after looking around the site, am I correct in thinking that they cant claim setion 69 interest as the debt is regulated by the CCA

Do you intend to alter your defence this should be done via AN N244 or are you going to accept Summary Judgement?

With regards to the final balance the rebate would have been offerd in the Default note at which time you would have had 14 days to rectify the breach.You would need to check the T&C of the agreement if that was to apply to such breach. Your defence should have refuted the section 69 interest BTW.

Regards

Andy

Andy

Many thanks

As I have said, Ihave never ever received a default notice. I am 90% sure that I can prove non receipt at the hearing. This is the main basis why the case shouldnt be brought as If I had the default, I would have made an attempt to sort it

However, they have not, IMHO foolowed CPR

I have attempted to agree some form of reduce payment plan that they refused

They didnt give me anywhere near enough time to respond to the one letter they sent.

They havent provided any Default Notice, only a diary note to say its been sent but this diary note looks incomplete.

Isiris,

If what you quoted comprises the full text of the Particulars of Claim (PC), they are shockingly inadequate. However CPR 16 which deals with PCs is of general application and there are no tailored rules govering CCA claims for money only. However, and this is only said in passing because nothing actually happened, but it seems to me that a DJ would have been fully entitled to direct the Claimant to file and serve Amended Particulars of Claim under CPR PD 3 or face the striking out of the claim in default, and to be honest, I think the court should have acted along such lines having been prompted to do so by your fax.

The CPR does not define a holding defence. A document purporting to be a defence will be treated as if it is a defence under CPR 16. A party who seeks more time to file a defence should ask the Claimant for more time or apply to the court for more time. The document you filed and which the court treated as a defence does not attack the claim against you head on. There is no denial. Had the PC contained adequate particulars, a DJ might have applied CPR PD 3 to you.

Fortunately the filng and exchange of material does not end with the defence and more information will therefore be produced. This is because the Claimants have made an application for summary judgment. In an application for summary judgment the Claimant must provide to you the evidence on which it intends to rely. If the Claimant has any sense, that evidence will be of the 'belt and braces' variety.

Some questions about the application for summary judgment

1 Are you able to provide a pdf of the McGlinn statement and any others (you say witness statements) and any documents refered to in support of the application for summary judgment?

2 Have the Claimants now supplied a true copy of the default notice and if so, can you at least produce a pdf of that?

I would hope that you are so that any CCA 74 failings on the part of the Claimant can be exploited. If you can't please do try to set out the salient facts.

3 When was the application received by you?

Since the defence is inadequate, it may be necessary for you to deliver a witness statement in reply. Under CPR 24 your statement should be delivered to the court and the oposition at least 7 days before the hearing (the application notice should say that), which means, if the hearing is fixed for 19 August and you haven't already made a statement, you need to get your skates on fast!

I wouldn't go sounding off about your application for further information or what you might regard as their failings under the CPR. The CPR are there to enable the courts to do justice between the parties and you may yourself be in default. Save for the request for the default notice and account details, the remainder constitutes a Subject Access Request (SAR) under the Data Protection Act for the production of which information, the Claimant has 40 days from receipt of the SAR and payment of their fee.

I say may be in dafault, because you haven't said for sure whether you have served a witness statement in answer and it might be the case that you will not need to. If the Claimant has not appended to the statement in support of the application a true copy of the default notice sent to you, in my opinion they will be unable to satisfy the court that you have no prospect of suceeding at a trial, regardless of whether you have seved a witness statement in reply. That said, and again adopting 'belt and braces' it would improve your prospects if you could get your own witness statement in.

Though this will have to be for another day, if the Claimant can not produce the default notice, that may give rise to the possibility that you could make a cross-application for summary judmgent.

On the matter of interest, a party who is entitled to interest pursuant to contract may substitute that claim with a claim for interest under County Courts Act 1984 s69, provided the rate under the Act does not exceed the rate under the agreement. I imagine the default rate under the agreement exceeds 8%. The rate should be zero in relation to instalments which have not yet fallen due.

If you could answer these questions I would hope to be able to help some more, but remember, you may need to move FAST.

x20

Hi

I am so sorry I have not replied. For some reason in my subscriptions, it didnt come up as if there had been a post.

I am prepared to an extent that the Default Notice was never served. This is on a few grounds

A. The Computer Printout that they say supports the fact that there was a notice, says Date/Time 19/12/07 but on the right hand side under diary it says Nothing. Every other entry on the printout has a date enter for diary. I phoned welcome up as a customer who had recieved a SAR and was asking a few questions. They said the 1st Date is when its requested by the comp and the Diary date is when its actioned. Hence, no Diary date, no action.

B. They alleged the default notice was sent on 19/12/07 and that it would allow 28 days. However, IM sent me the LBA on 11/1/08 CCA 74 88 (1) (2) says no further action be begin until the time specified on the Default has elapsed. This would further indicate the default was never sent

Its always very hard to prove something didnt happen but I think I can prove more it didnt than them it did.

Well that wasnt too bad

The claimants went first and he rabbited on that I hadnt filed a witness statement, which I hadnt. Then the judge looked at their witness statement and 1st of all said the figures didnt match, said they hadnt explained what MIDAS was and that they hadnt provided grounds for increasing the claim.

Then he said to me to explain and when I said something the solicitor said it shouldnt be allowed as I hadnt filed a witness statement to which he replied well you have Mr ???? and yours hasnt even got the defendants name correct has it ?

In a gist, I have 14 days to file and serve a witness statement. In it I have to explain everything from why I claim the default hasnt been issued to why I dont believe they are allowed to claim the CC69 interest.

I must admit, Im stuck so will appreciate any help anyone may have

Thanks

OK Isiris,

I follow what's required. I'll look at things tomorow and move towards producing the required witness statement by sat the weekend. Have noticed I'm already making deliferate smelling mistales.

x20

Theres noffin werse

As I understand things, after having been sued by Welcome Finance for money claimed under an agreement regulated by The Consumer Credit Act 1974, you then entered a Defence. The Defence did not expressly allege that before bringing the proceedings, Welcome failed to serve a default notice, but in effect this is the thrust of your defence. Such a defence, if established, would have the effect of defeating the claim because

Section 87(1) of the Act says:

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.

Notwithstanding, Welcome have applied to the court for summary judgment.

CPR 24.2 says: A claimant will be entitled to summary judgment where he is able to show that the defendant has no real prospect of successfully defending the claim or issue.

In other words, Welcome maintain you have no real prospect of being able to show at a trial that a default notice in compliance with s88 was not served before the proceedings began.

The modern approach to applications under CPR 24 was set out by Lord Hope in Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16. He regarded the rules as ‘designed to deal with cases which are not fit for trial at all’ and that use of the words ‘no real prospect’ imposed a criterion where the 'criterion which the judge has to apply under CPR 24 is not one of probability; it is the absence of reality.”

It seems to me the reality tests for the judge are therefore [1] your prospects of success are nil to negligible and conversely [2] Wellcome’s prospects of success are guaranteed or virtually so. A Defendant can not be said to have no real prospect of succeeding at trial if the Claimant, upon whom the burden of proving the claim rests, is unable to show he has a real prospect of success of succeeding.

The allegation that a complying notice was not served switches the burden onto Welcome. You can not and will not be expected to prove a negative. It will be for Welcome to show that a complying notice was served and that default thereafter occurred.

In my view, Welcome will be in difficulties on the ‘reality’ test. Welcome are unable at a CPR 24 hearing to bring into court evidence that they served a complying notice because we are told, they no longer possess a copy of the notice which they say was delivered. All they can produce is a screenshot of data held on a database. They invite the court to infer that the data extracted from the database is so unchallengeable that it should be accepted at face value and without demur as incontrovertible evidence of full compliance with sections 87 and 88. They invite the court to do this on evidence submitted by a solicitor in a witness statement.

At a trial, Wellcome would be rather foolish if they put a solicitor in the witness box as the means of introducing the database information. I doubt very much that the solicitor would be able to say how and by whom the data was entered and what checks were made to ensure the data was correctly entered and so forth. The solicitor would come across as even more unhelpful once the solicitor faced cross-examination. Besides wishing to know answers to these very basic questions, I am sure the court would wish to know Wellcome's policy on the safe keeping of copy default notices, why they are unable to produce a copy, whether they ever held a copy, if they did what became of the copy, if they didn’t why not, whether they operate a policy of destroying them before issues have been finally resolved, and if so why when and by whom the crucial default notice was destroyed etc.

In addition, the data on the database, (assuming the evidence was introduced to the court by the right person and the solicitor is not the best witness for the reasons I have explained of which the court on the CPR 24 hearing ought to take account) is incomplete for the purpose of showing compliance with s88 and the Regulations. From what I can tell, the combination of the database and the information provided by the solicitor in forwarding it on to you is that the database merely records that a default notice was 'issued' on 19 December 2007. As far as I can tell the database neglects to record

1 what (if any) prescribed information appeared on the default notice

2 On what date (if any) and by what means (if any) the default notice was served

3 What date was given as the date by when Wellcome required compliance with the default notice, and

4 What steps the notice required you to take to comply with the default notice.

I do not know if this is evidence before the court and contained in a witness statement, but eventually it will have to be. I am told that Wellcome say or will say that your default notice sent on 19 December 2007 allowed 28 days for compliance. Further questions arise on that matter too. Who will give this affirmation? The solicitor again? A solicitor who doesn't 'know'? I ask my self; what of the surrounding circumstances is so persuasive that the court should believe that the person making the affirmation makes it from his or her own knowledge? What is so credible about this evidence that it would be right and proper to refuse the Defendant the chance to cross examine witnesses and test the truth of the affirmation?

The 19 December 2007 was a Wednesday. Let us say it left their office on that day (though there is evidence available that second class post is used). Let us say it arrived on 21 December 2007. 28 days from 21 December takes us to Friday 18 January 2008 as the last day on which compliance might be made. At 00:01 hours on 19 January, you would be in default.

Before taking any further action against a debtor in default after service of a complying default notice, the creditor will wish to deliver a notice of termination in order to crystallise its right to recover 'today', instalments payable 'tomorrow'.

Do Wellcome say they terminated? They don't in the Particulars of Claim. Do they say whether they did and if so when in the witness statement? Do they produce a copy of any notice to you terminating? Does it say this on the database?

I suspect Wellcome did not deliver a notice of termination because a week earlier, on 11 January 2008, (you say 'they', I suspect Wellcome's solicitor) was writing a letter before action (LBA) to you. The letter threatened legal proceedings unless you paid 'the amount'. How did the LBA define 'the amount'? Was it the amount they sued for or some lesser amount?

If the LBA merely repeated a demand for payment of the sums claimed in the default notice, the letter may be treated as a letter seeking, during the last 7 of the 28 days provided, your compliance with the default notice. If it demanded payment of the sum sued for, that would imply that on a day prior to 11 January 2008, Wellcome terminated the agreement. A termination before 18 January 2008 would be in breach of s87(1)(a). Likewise, if the letter demanded payment of the sum sued for (being a sum in excess of just the arrears) that would amount to a demand made in breach of s87(1)(b)

I calculate that the payments you have made represent 7 instalments worth. Wellcome have sued for the equivalent of about 32 to 33 instalments and wish to increase the value of the claim still further. I would be surprised if after having paid 7 instalments, Wellcome allowed the breach to continue for over 2 years without taking any steps at all!

And we must never forget that, it is your evidence that you did not receive a default notice of any description. That is good evidence of that fact. To be able to persuade the court at a CPR 24 hearing that you have no defence, Wellcome will be (or ought to be) compelled to show that your evidence to this effect would undoubtedly be rejected if it were given at trial. How do they propose to show that at the CPR 24 hearing? That a document did not arrive in the post is not that incredible at all. The proper way to test whether a document was received would be before a Judge at trial on hearing you give evidence and your answers under cross-examination. There is no reason to suppose today that your evidence would be rejected at trial and the evidence of Wellcome preferred, especially given the scant information and information source surrounding compliance with s87 and s88.

For these reasons, if I were advising Wellcome, I would be unable to say that I believed the CPR 24 test was satisfied and that they would succeed if they made a CPR 24 application.

Sometimes it helps to draft the ideal judgment of the court in order to see the holes in the opposition’s case. Here's mine.

Judgment of District Judge X20

I am not persuaded the Defendant has no reasonable prospect of succeeding at trial. My reasons for so finding are:

For the Claimant to succeed it will have to show that it served upon the Defendant an effective default notice complying in all material respects with the provisions of ss87 and 88 of the Act.

The Claimants have not persuaded me that they are in possession of incontrovertible evidence that on a particular day they caused the delivery to the Defendant of a default notice within the meaning of s88 of the Act. Neither am I persuaded that the notice if one was served, was a notice which complied with s88 and the regulations. It would have been helpful to have seen the default notice and to have read what it said. I have not seen a copy of the notice and I am told the Claimant is no longer able to produce it. I am not told why.

No direct evidence has been offered to me that the notice contained the prescribed information. No direct evidence has been given to me that the notice gave accurate particulars of a breach and of what the Defendant was required to do to remedy that breach.

All I have been shown is a computer print out of data which I am told is data held on a database operated by the Claimant. I have heard no evidence directly from the Claimant's staff dealing with the entry of the data appearing on the printout, the source of that data and why I should be satisfied that the data entered represents an accurate transcription of the information written on the default notice.

I have been told, though this does not appear on the computer print out, that if I were to read the default notice which the Claimants say was served but are unable to produce, that the notice would have informed the Defendant that there was a period of 28 days within which to comply. In other words, the Defendant had until 19 August 2008 to comply.

The defendant’s evidence is that a default notice was not delivered. There is no reason to suppose the Defendant is lying. In the absence of credible evidence that a default notice compliant in all material respects was delivered I am unable to find the defendant has no real prospect of succeeding at the trial.

Additionally, before a creditor is entitled to demand any of those things it is permitted to demand in s87(1) of the Act, besides having to deliver a default notice which complies with the requirements, the creditor must also wait until the expiration of the time given to the debtor for compliance with the notice. The Act says, for example at s87(1)(b), that compliance with s88 is required before the creditor becomes entitled to demand earlier payment of any sum. That is, demand payment of a sum which under the agreement had not fallen due but which, because of the terms of the agreement and the debtor's default, became payable earlier than would otherwise have been the case.

On 11 January 2008 the creditor delivered by second class post, a letter demanding the sums now sued for. The demand included sums which had not fallen due at the date of the default notice. The demand was therefore a demand the Claimant had no right to make at the time it was made.

The Claimants have not advanced any evidence that after the Defendant failed to comply, they terminated the agreement and/or provided the Defendant with notice that the agreement had been terminated so as to give rise to a right to demand earlier repayment of sums payable under the agreement

In the circumstances, besides my concerns that the Defendant was not served with an effective default notice, there exist issues concerned with whether on 22 January 2008 when these proceedings began, the agreement had been terminated and notice given to the Defendant so as to give rise to a right to earlier repayment.

The existence of credible issues prohibit me from granting the Claimant judgment.

x20

Excellent Surfaceagent x20

Regards

Andy:)

WOW

Give me till the weekend and I will reply

Waiting for the actual order from the judge before I do anything and will post them here.

Right, received the order through the post.

1. The defendant to file and serve a witness statement in reply by 2nd Sept 2008

2. The claimant (if so advised) do file and serve a witness statement in reply by 4pm 19th September

3. The claimant to file and serve a witness statement in support of its application to amend the amount setting out in detail how the error occurred and how the sum is now calculated by 4pm on 19th Sept

4. Details of hearing

5. Costs reserved

The judge was very fair and has told me to include why I shouldnt pay sect 69 interest, how i hadnt received default notice, include absolutely everything in the world I want to say. Any help from anyone pleeeeaaaxxse.:grin:

Right, had a bash myself as I was sure this was due on Thursday

Vs

• The defendant does not deny that a contract existed between the defendant and the claimant
  

• The defendant is of the belief that under the Section 87 of the Consumer Credit Act 1974 that the creditor must serve a default notice before any demand for early payment. It is the defendant’s case that no default notice was received by the defendant.
  

• The claimant relies on a screenshot from a “Mida” system that shows the entry
  

19/12/07 KB 2301339 NOD NOD

• The claimant claims that NOD stands for Notice of Default.
  

• The claimant has already admitted in a letter dated 12th August 2008 that they are unable to produce a copy of the default notice.
  

• Under Section 88 (1) of the Consumer Credit Act 1974 it states that any default notice must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
  

• Without prejudice to point 4 of this witness statement, the claimant cannot provide proof that Section 88 (1) was applied.
  

• In regards to point 3 of this witness statement, the defendant contends that this does not show any proof that a notice was sent. It shows a generated instruction from a computer that it has been requested.
  

• The defendant puts the claimant to proof that Section 88 (1) of the Consumer Credit Act 1974 was fulfilled but the defendant knows this is not possible as they already admit they cannot provide a copy of the default notice issued
  

• The defendant puts to strict proof of the claimant, who posted the default notice, where posted, how sent (First or Second Class). The claimants have relied on a solicitors witness statement that up to now, have only relayed information they have been provided by the actual claimants.
  

• The claimant claims the default notice was sent on the 19th December 2007. The default notice would have allowed 28 days for the defendant to rectify the default. Under the Consumer Credit Act 1974, when a default notice is issued, the creditor cannot terminate the agreement nor demand earlier payment of any sum due under the agreement.
  

• In regards of point 11 of this witness statement, if the notice was served on the 19th December 2007, why did the claimants solicitor send a Letter Before Action on the 11th January 2008 demanding payment, 23 days after the claimant claims the default notice was sent?
  

• It is the defendant claim that the claimant cannot provide any proof that the Default Notice has been issued in accordance with the Consumer Credit Act 1974 and as such, the claimant has no right at this time to demand early payment.
  

• 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 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) should render it invalid as the claimant can provide no proof that one was sent
  

Without Prejudice to any of the above, the following witness statement is made if the claimant succeeds in their summary application.

• The claimant claims the value of the original claim is incorrect. They therefore request the claim value to be amended to £9598.68 yet they have failed to provide proof of how this figure has been arrived.
  

• The claimant’s solicitor however did provide an Appendix which showed various calculations that shows figures which the judge, myself and the claimants solicitor (Agent) could not understand.
  

• The defendant does observe section 4 of the claimants own contract which states, should you fail to remedy the default (if the breach is capable of remedy) or pay the full sum (if any) required by the default notice to be paid in compensation for the breach (if the breach is not capable of remedy) within the period specified in the default notice, then the amount calculated in accordance with clause 1(d) shall become immediately due and payable.
  

• Clause 1(d) states you may close your account at any time by paying us (i) the balance of the total amount which would have been payable under the this agreement if early settlement did not take place (ii) Interest accrued but unpaid (iii) any other amounts due but unpaid under this agreement LESS (iv) a rebate calculated under the terms of the Consumer Credit (Early Settlement) Regulations 2004.
  

• With the above in mind, the defendant invites the claimant to provide a calculation based on the above
  

• The claimant also in their sparse particulars of claim wish to claim interest under section 69 of the County Courts Act. Under Section 69 (4) Interest shall not be awarded when interest on a debt is already running. This is a claim under a regulated agreement and as such, an interest vehicle is operating and as such, interest is not claimable
  

• The claimant also claims £190 in charges. The Defendant refutes these are payable. These are default charges levied on the account for late payments, missed payments et al. The defendant wishes to advise the court that these charge types are subject to a High Court hearing, Abbey +7 Vs Oft. These charges have been deemed by Mr Justice Smith to fall within the remit of the Unfair Terms in Consumer Contracts Regulations 1999.
  

Any thoughts as I need to send this off by 4pm today for Guaranteed Next day

First, I would like to say what a top class effort you made of your witness statement and which shows an excellent working knowledge of the relevant provisions of the Act.

I have made a few adjustments to your statement, which I hope you will not mind and which are made primarily to deal with the workings of a CPR 24 application for summary judgment and to adjust your statement to one which reads in the first person.

My draft, which incorporates your text in black and my mods in red, runs like this:

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

2 I The defendant do not deny that a contract once existed between me the defendant and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

4 At trial I shall contend The defendant is of the belief that under the Section 87 of the Consumer Credit Act 1974 (The Act) that the creditor must serve deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is the defendant’s my case that no default notice which complied in the respects referred to was ever received delivered to me by the Claimant defendant.

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me The claimant relies exclusively on a screenshot from a “Mida” system that shows the entry

19/12/07 KB 2301339 NOD NOD

6 I understand The claimant claims that NOD stands for Notice of Default. (state source if possible)

7 The claimant has already admitted in a letter dated 12th August 2008 that they are unable to produce a copy of the default notice.

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Consumer Credit Act, 1974 it states that any for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

Without prejudice to point 4 of this witness statement, the claimant cannot provide proof that Section 88 (1) was applied.

In regards to point 3 of this witness statement, the defendant contends that this does not show any proof that a notice was sent. It shows a generated instruction from a computer that it has been requested.

The defendant puts the claimant to proof that Section 88 (1) of the Consumer Credit Act 1974 was fulfilled but the defendant knows this is not possible as they already admit they cannot provide a copy of the default notice issued

The defendant puts to strict proof of the claimant, who posted the default notice, where posted, how sent (First or Second Class). The claimants have relied on a solicitors witness statement that up to now, have only relayed information they have been provided by the actual claimants.

10 Moreover, The claimant claims the default notice was sent on the 19th December 2007 and that The default notice if it could be seen by the court would show it have had allowed 28 days for the defendant me to rectify the any default mentioned in it. Under section 88(2) of the Consumer Credit Act 1974, when a default notice is issued, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 28 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that In regards of point 11 of this witness statement, if the notice was served delivered on the 19th December 2007 and gave 28 days for me to rectify any default mentioned in it as the Claimant appears to contend, that the, why did the claimant’s solicitor sent a Letter Before Action on the 11th January 2008 demanding payment, being just 23 days after the claimant claims the default notice was sent.

11 The delivery of the letter before action is good evidence that on or before 11 January 2008, the Claimant terminated the agreement.

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on 19 December 2007 the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on 19 December 2007 and which gave to me 28 days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

It is the defendant claim that the claimant cannot provide any proof that the Default Notice has been issued in accordance with the Consumer Credit Act 1974 and as such, the claimant has no right at this time to demand early payment.

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 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) should render it invalid as the claimant can provide no proof that one was sent

13 Without Prejudice to my main contention set out any of the above, the following witness statement is made if the claimant succeeds in their summary application. The claimant now claims without any good or proper explanation that the value of the original claim is incorrect and They therefore request the claim value to be amended to £9598.68. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations that shows figures which the judge, myself and the claimants solicitor (Agent) could not understand.

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

The defendant does observe section 4 of the claimants own contract which states, should you fail to remedy the default (if the breach is capable of remedy) or pay the full sum (if any) required by the default notice to be paid in compensation for the breach (if the breach is not capable of remedy) within the period specified in the default notice, then the amount calculated in accordance with clause 1(d) shall become immediately due and payable.

Clause 1(d) states you may close your account at any time by paying us (i) the balance of the total amount which would have been payable under the this agreement if early settlement did not take place (ii) Interest accrued but unpaid (iii) any other amounts due but unpaid under this agreement LESS (iv) a rebate calculated under the terms of the Consumer Credit (Early Settlement) Regulations 2004.

With the above in mind, the defendant invites the claimant to provide a calculation based on the above

15 The claimant also in their sparse particulars of claim wishes to claim interest under section 69 of the County Courts Act 1984. Under Section 69(4) Interest shall not be awarded when interest on a debt is already running. This is a claim under a regulated agreement and as such, an interest vehicle is operating and as such, interest is not claimable

16 The claimant also claims £190 in charges. I The Defendant refute these are payable. These are default charges levied on the account for alleged late payments. missed payments et al. The defendant wishes to advise the court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 subject a High Court hearing, Abbey +7 Vs Oft. [The Office of Fair Trading v Abbey National PLC and others (2008)]. I will contend at trial that such charges are unfair in their entirety. These charges have been deemed by Mr Justice Smith to fall within the remit of the Unfair Terms in Consumer Contracts Regulations 1999.

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

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Unfortunately, the strike through font has not come through on the posting. I hope you will be able to decipher where the strike throughs would be, but for the avoidance of any problem, I'll repost the statement as if it were the complete article in a mo.

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without the red stuff and the strinkigs out which didn't show up, the finished article would look something like this:

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry

19/12/07 KB 2301339 NOD NOD

6 I understand the claimant claims that NOD stands for Notice of Default.

7 The claimant has already admitted in a letter dated 12th August 2008 that they are unable to produce a copy of the default notice.

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

10 Moreover, The claimant claims the default notice was sent on the 19th December 2007 and that the default notice if it could be seen by the court would show it had allowed 28 days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 28 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the 19th December 2007 and gave 28 days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a Letter Before Action on the 11th January 2008 demanding payment, being just 23 days after the claimant claims the default notice was sent.

11 The delivery of the letter before action is good evidence that on or before 11 January 2008, the Claimant terminated the agreement.

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on 19 December 2007 the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on 19 December 2007 and which gave to me 28 days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

13 Without Prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £9598.68. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations that shows figures which the judge, myself and the claimants solicitor (Agent) could not understand.

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

15 The claimant also wishes to claim interest under section 69 of the County Courts Act 1984. Under Section 69(4) Interest shall not be awarded when interest on a debt is already running. This is a claim under a regulated agreement and as such, an interest vehicle is operating and as such, interest is not claimable

16 The claimant also claims £190 in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2008)]. I will contend at trial that such charges are unfair in their entirety.

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

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hi isiris and suface gent

i must say, what an excelent defence, its been a pleasure reading it.

it seems you have a decent judge

hope you get him on the day

good luck

If I could find a bowing smiley this page would be full.

I knew I had the gist but didnt know the terminology of what to put but you have put it beautifully

Sent of as served

MANY MANY thanks

hi isiris and suface gent

 

i must say, what an excelent defence, its been a pleasure reading it.

 

it seems you have a decent judge

hope you get him on the day

good luck

Many thanks

I do have him on the day as he specifically asked to have the case and this is confirmed in the order.

in that case half the battle is won

when i had welcome up in court, judge on my side all the way

judgement in my favour

I think all the battle may be won. With that defence (which even I could follow) I can't see the claimant staying around for the case. I would expect them to withdraw post haste.

Well done to both of you.