Hi all.

I have to set about a defence to be submitted in 14 days.

Not sure how myself and my wife can get around this one to be honest. We had to stop paying as we could not afford it. We made a token payment, and soon after received court papers after been sent default notices etc.

I have attached the particulars of claim... a bit less vague than the last case .. If someone can pick it to pieces when they get a chance we would be very grateful. Obviously I have removed all details so in places it looks a bit err...blank!

Here's hoping

Scan001_Page_1.zip

Hi all.

 

I have to set about a defence to be submitted in 14 days.

 

Not sure how myself and my wife can get around this one to be honest. We had to stop paying as we could not afford it. We made a token payment, and soon after received court papers after been sent default notices etc.

 

I have attached the particulars of claim... a bit less vague than the last case .. If someone can pick it to pieces when they get a chance we would be very grateful. Obviously I have removed all details so in places it looks a bit err...blank!

 

Here's hoping

Hi,

Can i get some advice from somebody please?

The Default Notice sent to us dated the 17th Feb 09 states that we had to respond within 17 days of the date on the letter....to me that means a response was required no later than the 5th Mar.

That is including the date the letter was sent, as per the requirements of the Default Notice.

The Solicitors POC states

"Pursuant to the Consumer Credit Act 1974, by a notice of default served on the defendant on 17th Feb 09, the claimant required the defendant to remedy the said breach by 3 March 09"

That surely is not correct? Is the default notice or the solicitor wrong? Either way, can the inconsistency be used as a defence?

The POC then continues...

"The defendant failed to remedy the breach within the said period and by a written demand dated 26 March 09 and served upon the Defendant, the claimant demanded from the defendant repayment of the outstanding loan balance of £xxxx.xx and thereby notified the defendant that failure to pay that sum within 7 days may result in the claimant issuing county court procedings to recover the balance due"

They are referring to a final demand sent on the 26th... but nowhere in the demand does it mention "7 days". just says that they demand immediate payment...no timeframe mentioned at all.

Can this be used as a defence too?

I still have to send a CPR request... im hoping to get that off on Monday.

Hope someone can advise.

Thanks

When did the summons arrive - the issue date appears to be the 22nd of April...that doesn't give you 14 days to file a defence

Have you filed the AoS indicating that you're going to defend.

Hi,

Can i get some advice from somebody please?

 

The Default Notice sent to us dated the 17th Feb 09 states that we had to respond within 17 days of the date on the letter....to me that means a response was required no later than the 5th Mar.

That is including the date the letter was sent, as per the requirements of the Default Notice.

 

The Solicitors POC states

"Pursuant to the Consumer Credit Act 1974, by a notice of default served on the defendant on 17th Feb 09, the claimant required the defendant to remedy the said breach by 3 March 09"

 

That surely is not correct? Is the default notice or the solicitor wrong? Either way, can the inconsistency be used as a defence?

 

The POC then continues...

"The defendant failed to remedy the breach within the said period and by a written demand dated 26 March 09 and served upon the Defendant, the claimant demanded from the defendant repayment of the outstanding loan balance of £xxxx.xx and thereby notified the defendant that failure to pay that sum within 7 days may result in the claimant issuing county court procedings to recover the balance due"

 

They are referring to a final demand sent on the 26th... but nowhere in the demand does it mention "7 days". just says that they demand immediate payment...no timeframe mentioned at all.

 

Can this be used as a defence too?

 

I still have to send a CPR request... im hoping to get that off on Monday.

 

Hope someone can advise.

 

Thanks

The PoC are wrong - assuming that the DN was posted 1st class on the 17th February it would be deemed to arrive on the 19th and would be effective from the 20th expiring on the 5th - on the basis of the dates the DN appears to be valid BUT we'd need to see the actual DN

You need to get the CPR 31.14 off ASAP

Is the claim above or below £5000

The PoC are wrong - assuming that the DN was posted 1st class on the 17th February it would be deemed to arrive on the 19th and would be effective from the 20th expiring on the 5th - on the basis of the dates the DN appears to be valid BUT we'd need to see the actual DN

 

You need to get the CPR 31.14 off ASAP

 

Is the claim above or below £5000

Hi...thanks for responding...

The dates are a bit crazy on the court forms... We received them late but we phoned the court and they had made allowances for the late postal of the papers. We had to have our AOS in by Thursday just gone. So we have until the 28th to file our defence.

The DN dates always confuse me which is why i was asking, but I am clutching at straws i think...I dont know how we are going to get out of this one lol.

The claim is for just over £3k

CPR will be sent ASAP

:-|

Hi...thanks for responding...

The dates are a bit crazy on the court forms... We received them late but we phoned the court and they had made allowances for the late postal of the papers. We had to have our AOS in by Thursday just gone. So we have until the 28th to file our defence.

 

The DN dates always confuse me which is why i was asking, but I am clutching at straws i think...I dont know how we are going to get out of this one lol.

 

The claim is for just over £3k

 

CPR will be sent ASAP

:-|

It will be a day or two before I can get the DN up... Would it help if I typed the whole thing up on here?

The PoC are wrong - assuming that the DN was posted 1st class on the 17th February it would be deemed to arrive on the 19th and would be effective from the 20th expiring on the 5th - on the basis of the dates the DN appears to be valid BUT we'd need to see the actual DN

 

You need to get the CPR 31.14 off ASAP

 

Is the claim above or below £5000

Hi Again...here is the Default Notice in its entirety exactly as it appears on the letter they sent.

Name

Address etc

17th Feb 2009

Dear Miss xxxxx

Re: Miss xxxx

Account Number: xxxxxx

Balance: £xxxx

This Default Notice is served in accordance with Section 87(1) of the Comsumer Credit Act 1974

Notice is hereby given that, in accordance with Clause 4 of your agreement with Northern Rock PLC, monthly payments to your account stated above have not been maintained and an arrears amount of £xxx.xx is now outstanding.

You are required, within 17 days of this notice, to remit direct to Northern Rock PLC the full arrears amount stated.

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

Steps will be taken to register this Default Notice with the Credit Reference Agencies in 28 days time.

Action will commence to recover the full balance of the account together with the interest charge. This could involve Court proceedings for which the Court costs and legal fees may be payable by yourself.

IF YOU HAVE ANY DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

You should be aware that if we take you to court and get a judgement against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgement, and interest under the agreement on all the sums owed by you at the date of the judgement until you have paid these in full. This means that even if you pay off the whole amount of the judgement, you may still have a further sum to pay.

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS ADVICE BUREAU.

This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.

Hi,

Just getting my CPR ready to send... Do i send it to the solicitors or NR themselves? There is no DCA involved.

Thanks

Hi,

Just getting my CPR ready to send... Do i send it to the solicitors or NR themselves? There is no DCA involved.

 

Thanks

The Solicitors

The Solicitors

Thanks No Money

Hi Again...here is the Default Notice in its entirety exactly as it appears on the letter they sent.

 

 

 

 

 

Northern Rock blah blah

 

Name

Address etc

 

 

17th Feb 2009

 

Dear Miss xxxxx

 

Important You Should Read This Carefully

 

Re: Miss xxxx

Account Number: xxxxxx

Balance: £xxxx

This Default Notice is served in accordance with Section 87(1) of the Comsumer Credit Act 1974

 

Notice is hereby given that, in accordance with Clause 4 of your agreement with Northern Rock PLC, monthly payments to your account stated above have not been maintained and an arrears amount of £xxx.xx is now outstanding.

 

You are required, within 17 days of this notice, to remit direct to Northern Rock PLC the full arrears amount stated.

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

 

Steps will be taken to register this Default Notice with the Credit Reference Agencies in 28 days time.

 

Action will commence to recover the full balance of the account together with the interest charge. This could involve Court proceedings for which the Court costs and legal fees may be payable by yourself.

 

IF YOU HAVE ANY DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

 

You should be aware that if we take you to court and get a judgement against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgement, and interest under the agreement on all the sums owed by you at the date of the judgement until you have paid these in full. This means that even if you pay off the whole amount of the judgement, you may still have a further sum to pay.

 

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS ADVICE BUREAU.

 

This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.

Hi,

Is anyone able to take time to examine the above DN please? I think there is a discrepancy with the date, but I am not sure.

Thanks in Advance

I would check the requirements on the regs as I believe they have to specify an actual date to remedy by and not just say within 17 days so this in itself would make it invalid. Please ask for further confirmation on this as I'm still learning as we go along. Also has the account now been terminated? as they would only be able to collect the arrears if they have terminated the account based on a DN that is invalid.

Hope somebody will comment further on this.

Regards

Thanks Ghostdebt... I too am learning...nothing like being in at the deep end eh? I have another 4 or 5 of these to go!!

I dont believe we will win em all...but I'm gonna give it a damn good go! Just wish I knew what I was talking about

Interesting....found this article... its about a motor vehicle arrangement of sorts...but its got to be relevant?

It sure does say that a date needs to be specified

Happy Days....can anyone confirm this is the case?

"

Default Notices

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
  
• a description of the agreement
  
• the name and address of both the debtor and the creditor
  
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
  
• a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach
  
• a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you
  
• a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement and recovery possession of the motor vehicle)
  
• if the agreement is one of hire purchase or conditional sale, a statement saying: but if you have paid at least one third of the total amount payable under the agreement set out below (or any installation charge plus one third of the rest of the amount payable). The creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland, he may need to get a court order at any time.) If he does take them back without your consent or a court order, you have the right to get back all of the money you have paid under the agreement set out below
  
• if an amount of money is required to be paid, the amount before deducting any rebate on early settlement
  
• statements saying:
  if you have difficulty in paying any sum owing under the agreement or taking any other action required by this notice, you can apply to the court which may make an order allowing you more time
  if you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizens' advice bureau
  important - you should read this carefully
  

Under Regulations 33 of the Consumer Credit (Information Requirements and Duration of Licenses and Charges) Regulations 2007 the default notice must from 1 October 2008 also include the following statement:

If the default notice fails to include all of the necessary information, it is likely to be ineffective and will not allow the creditor to recovery the motor vehicle unless you give your consent to the recovery. So, what can you do if it is recovered against your wishes? The answer depends on how much you have paid to the creditor.

If you have paid more than one third of the total amount payable, section 90 of the 1974 Act states that the motor vehicle is 'protected' from repossession. So, if the motor vehicle is recovered then, under section 91 of the 1974 Act you are entitled to a return of all of the money you have paid to the creditor, regardless of how long you have had the motor vehicle.

If you have paid less than one third of the total amount payable, the motor vehicle is not protected from repossession. Instead, if it is recovered you can say that the creditor has wrongfully interfered with your right to possession of the motor vehicle. The Court cleared-up what this meant in Chartered Trust plc v King (2001) WL 172107 and decided that the debtor (i.e. you) are entitled to a return of all of the money paid to the creditor. Again, it is irrelevant how long you have had the motor vehicle.

Debtor's Termination

Under section 99 of the 1974 Act a debtor under a hire purchase or conditional sale agreement can, at any time before the agreement has ended, give written notice to the creditor to end the agreement. Once the agreement has ended, you have to return to the motor vehicle in a reasonable condition and, if you have paid less than a half of the total amount payable, you must pay the creditor the difference between one half of the agreement and what you have paid. If you have paid more than one half, you only have to return the motor vehicle and pay the arrears at the date of your letter.

It is important to remember that you can exercise your right under section 99 of the 1974 Act even if you have received a default notice as long as the date in that notice has not passed. In First Response Finance Limited v Donnelly [2006] GCCR 5901 the Court considered whether a debtor's termination after the date specified in the default notice would limit the amount payable to the creditor to the difference between one half of the agreement and what had been paid. It decided that it did not and the debtor was liable for the total amount payable under the agreement minus the amount paid by the debtor and the motor vehicle's net sale proceeds.

Time Order

Before you can apply to the Court for a time order, you must be served with a default notice or, when they become required by law, an arrears notice. Normally, the Court only has the power to give you extra time to pay the arrears but if the agreement is one of hire purchase or conditional sale, it can make an order under section 130(2) of the 1974 Act to effectively re-write the agreement.

The Court will consider your financial position. It is therefore vital that you send to the Court and the creditor as much information as possible about your financial position and explain, with evidence, how it will get better. If there is little prospect of it doing so, the Court is unlikely after the decision in First National Bank plc v Syed [1991] 2 All ER 250 to give you extra time to pay."

Have a look through the following actual regs for clarification

Regulations 1983 and shall come into operation on 19th May 1985

http://www.check-my-debt.co.uk/uploaded_files/CC-En-D-T-Notices1974-SI1983-1561.pdf

Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 and shall come into force on the 31st December 2004

The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004

Regards

p.s the article you found is very interesting too.

Some useful info in there.

Cheers

p.s the article you found is very interesting too.

 

Some useful info in there.

 

Cheers

Thanks for the links GhostDebt...your help is much appreciated

Can anyone help Clarify the Situation with Dates on Default Notices?

Specifically the date required to rectify a breach.

On some of mine it says " within XX days of RECEIPT of this Notice"

That to me could not be any more vague!!

Some say "within XX days from the date on this letter" ie: the postal date

Vague too, but at least a time frame!

The CCA 1974 specifically mentions the word date as opposed to "a range of dates" ...but has this ever been confirmed by Case Law?

I am so confused...on top of the issue whereby a date is actually specified, but where the postal date has not been considered and enough time has not been given.

Any Clarity would be much appreciated.

Hi,

I could really do with some help please?

I have until Thursday to submit my defence for this case.

Basically a loan with Northern Rock... have just received a response to my CPR request as follows...

"Thank you for your letter dated blah blah blah...

As requested we enclose copies of the following:

1. Loan agreement including terms and conditions relating to the agreement. ( I can barely read it! not to say its illegible, just the copy of it)

2. Default notice ( which I have already )

3. Formal demand ( i did not ask for this, i asked for the termination notice)

Please note that our client does not retain copies of default notices and formal demands. Accordingly, the copies which are enclosed are reconstitued documents using data from our clients electronic records.

Yours Faithfully"

Umm...have they complied??

no termination notice,

a reconstituted default notice which is the same as the one i typed in an earlier post which does not specify a date, even though it insists the breach is remedied by "before the date shown"

I am not sure where to go with this one. I cannot really tell if the agreement is enforceable as i cannot read it.

I am unlikely to receive a legible copy before Thursday....Is what I have enough to build a defence with?

Fingers Crossed

This link may give you some help to understand the issues.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html#post2186015

Have you made a start on your defence so that people can help you with it? If so please post it up, and if not, the links should help you make a start.

This link may give you some help to understand the issues.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html#post2186015

 

Have you made a start on your defence so that people can help you with it? If so please post it up, and if not, the links should help you make a start.

Hi Caro,

Thanks for that, I will have a read.

I would not know where to start with a defence.. I am not knowledgeable enough yet i guess. I think I may have bitten off more than I can chew. I have another possible 3-4 cases coming up too :O

This is a self help site Lux, but that doesn't mean you won't get help too. If you do lot's of reading you'll no doubt find threads discussing similar issues to your own case and learn what you need to know.

If and when you get to court you'll be on your own, so if you can understand the issues now you'll have a much better chance of winning.

This link may give you some help to understand the issues.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/200901-anatomy-default-notice.html#post2186015

 

Have you made a start on your defence so that people can help you with it? If so please post it up, and if not, the links should help you make a start.

I guess based on the fact that the Credit agreement is illegible, and i am unlikely to get a legible one by thursday, my hopes lie on the default notice being invalid!!

I have gathered that a date must be specified, so to me then that renders it invalid...

Just wish i knew how to word it in legal terms lol

You are a litigant in person so the judge won't mind if you put it in your own terms. Just write it as you see it, quote any relevant law or cases you find. It help to make it clearer if you have a paragraph for each point and number them.

You may well be able to find defences that you can use paragraphs from to build your own defence. We all have to start somewhere and it's safer to work it out and make any mistakes here than find out about them in court when it's too late to put it right.

The hard part is always getting started. You've already got some points identified on this thread you could use.

Ok...I have taken assunder the POC and have found the following

"By a Consumer Credit Agreement in writing made between the Claimant and the defendant dated 6th June 2007 the claimant agreed to advance to the defendant the sum of £xxxx. The said sum was advanced to the defendant on or about 6 June 2007.

1. The agreement was signed in advance by them on the 4th...signed by my Wife on the 5th...dont know where they are getting the 6th? That would be the earliest date they would have received the form back, not the date of the agreement

2. The amount they state is not accurate, my wife signed for insurance too, making the sum more than that, but their 48 monthly installment details are correct.

"Pursuant to the Consumer Credit Act 1974, by a notice of default served on the Defendant on 17th Feb 2009, the Claimant required the Defendant to remedy the said breach by 3rd March 2009"

1. Their Default Notice was dated the 17th. In their terms and conditions it states

"Any Notice or Demand we give will be assumed to have been properly given if served on you personally, or left or sEnt by prepaid post addressed to you at your current or last known business or private address. IF SENT BY FIRST CLASS POST IT WILL BE ASSUMED TO HAVE BEEN RECEIVED BY YOU 48 HOURS AFTER POSTING"

That means we would have received it on the 19th. By my calculations that means the 6th March is the remedy date.

The Solicitor states we had until the 3rd March (13 days) and the DN itself merely states within 17 days of this notice...I make 17 days after the 17th Feb to be the 5th Mar.

This all seems wrong!!

My understanding is the regardless of the dates, the DN is invalid as it does not specify a date to remedy the breach.

"The Defendant failed to remedy the breach within the said period ( emm,3rd? 5th or 6th? )and by a written demand dated 26th March 2009 the claimant demanded repayment of the outstanding loan balance and notified the defendant that failure to pay that sum within 7 days may result in blah blah blah"

1. They are referring to a formal demand and Termination notice dated the 26th March. Again we would have received it on the 28th but nowhere on the letter does it give a date or even a period of time as stated by the solicitor.... it just says they want it immediately!!!

Utter Rubbish

That is all I have at the moment as my defence. I have to put it into legal terms, but does anyone have any additions or pearls of wisdom that may help here??

Thanks in advance.