It's got credit limit, interest and repayments on it so I would say that it is enforceable

These are just my thoughts. Well, on the face of it, if they drop the charging order they would be able to bring a bankruptcy petition. But I would have thought that they would have had to drop the charging order before they sent the SD to you. But without knowing any details of that other case they were relying on then it's difficult to say anything. If they have given up the charging order and, presumably, there is already a CCJ in existence then I would suggest that there really aren't any grounds to get it set aside. I believe that even if you try to get the CCJ set aside they can still go for bankruptcy in the meanwhile. With the PPI issue, if you claim this back will it bring the total amount owing below 750 quid? If yes, then you can use this. If no, then I would suggest waiting to make a PPI claim for a while. If they do make you bankrupt then it would be worthwhile waiting until after your bankruptcy finishes to make the claim.

The trouble is with an overdraft is that it is regulated by the CCA. As a result of this there is no sanction available to you, such as restitution, that is not provided for in the Act, it's section 170 I believe. Have a word with pt2537, he won a arestitution case for one of his clients in the first instance but was then soundly beaten in the Court of Appeal.

What was being set aside? Was it a CCJ or a statutory demand? YOur first post sounded as though you were talking about a CCJ, but your latest post sounds as though it involved a statutory demand. I have just read your last post where you say:- Are you sure that this was actually what their argument was? From the way you describe it, it sounds as though the creditor is arguing against them being granted a bankruptcy order being made against you - which, I would suggest, cannot be correct. Or are you saying that the creditor was actually willing to forgo it's charging order and just become another unsecured creditor? Do you mind telling us the name of the other case that the creditor was relying on?

It all depends on the circumstances. Depending on what has happened, the Unfair Terms in Consumer Contract Regulations might be appropriate or the Unfair Contract Terms Act might be appropriate. On the other hand, they might have no relevance at all. As you haven't told us the circumstances then it really is imposssible to give any meaningful advice.

Was this of any help to you?

Well, the case in Stephen's link, Collier v P & M J Wright (Holdings) Ltd [2007] EWCA Civ 1329, I would suggest is certainly authority for promissory estoppel where a full and final offer has been made:- [42] The facts of this case demonstrate that, if (1) a debtor offers to pay part only of the amount he owes; (2) the creditor voluntarily accepts that offer, and (3) in reliance on the creditor's acceptance the debtor pays that part of the amount he owes in full, the creditor will, by virtue of the doctrine of promissory estoppel, be bound to accept that sum in full and final satisfaction of the whole debt. For him to resile will of itself be inequitable. In addition, in these circumstances, the promissory estoppel has the effect of extinguishing the creditor's right to the balance of the debt. This part of our law originated in the brilliant obiter dictum of Denning J, as he was, in the High Trees case. To a significant degree it achieves in practical terms the recommendation of the Law Revision Committee chaired by Lord Wright MR in 1937. I suppose that you could argue from this that if an agreement had been made to accept reduced payments for a certain period and the debtor was actually making those payments then the creditor would be estopped from claiming the full debt during the period of time that it had agreed to accept these lower payments.

I would suggest that the penalty charges argument will only be relevant if it brings the toatl amount owed to less than 750 quid. With the default notice it would also help to quote harrison v Link Financial

To be honest I would disagree with you on this point. A liquidated debt is merely one that can be readily determined. This idea of a 'form of accounting' came from some poster who just turned up, made two posts and then disappeared again. I really would suggest that you will not get anywhere with this.

Skeleton Argument 1. This skeleton argument is intended to supplement the defence already provided. The Assignment of the Debt 2. In the Reply to Defence, the Claimant admitted paragraph 3 of the Defence. It is thus common ground that:- In order to prove it's claim the Claimant must establish a number of matters. Firstly that a valid Default Notice was issued. Secondly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Thirdly, that proper notice of any such assignment was given to myself (S196 Law of Property Act 1925). 3. The necessity for proper notice being given before the commencement of legal proceedings is also confirmed by Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101. Otherwise, the Claimant has no standing before the court. 4. In paragraph 18 of the Reply to Defence, the Claimant contends that it is for the Defendant to prove its' case. It is submitted that the Claimant is mistaken in this. If the Claimant cannot demonstrate that the notice was properly given to the Defendant then it has no standing before the court. 5. The Defendant denies receiving any notice and the Claimant has not offered any evidence that the notice was received, but merely contends that it was posted by means of the ordinary postal service. The point of contention is whether the Claimant achieved good service of the notice. 6. It is common ground that the Law of Property Act 1925 is the relevant act that governs the assignment of debts. The act clearly states the two methods by which notices may be sufficiently served, ie leaving it at the last known place of abode or by sending it in a registered letter or, as now applies, in a recorded delivery letter Section 196(3) and (4). 7. These two methods are intended to assist the person who must serve a notice by offering him choices of mode of service which will be deemed to be valid service even if in the event the intended recipient does not in fact receive it. If it was proved that the Claimant had sent the notice by Recorded Delivery then service would be proved regardless of the Defendant not receiving it. 8. However if, as in this case, the Claimant chooses not to use one of the methods given in Section 196 they run the risk that, again as in this case, the Defendant does not receive the notice and so proper notice has not been given. 9. In the case of Chiswell v Griffon Land & Estates Ltd [1975] 1 WLR 1181, 1188-9, Megaw LJ said:- “[the Act]... lays down the manner in which service of a notice can be effected. It is provided, as what I may call at any rate the primary means of effecting service, that it is to be done either by “personal” service or by leaving the notice at the last-known place of abode, or by sending it through the post in a registered letter, or (as now applies) in a recorded delivery letter. If any of those methods are adopted, they being the primary methods laid down, and, in the event of dispute, it is proved that one of those methods has been adopted, then sufficient service is proved. Thus, if it is proved, in the event of dispute, that a notice was sent by recorded delivery, it does not matter that that recorded delivery letter may not have been received by the intended recipient. It does not matter, even if it were to be clearly established that it had gone astray in the post. There is the obvious, simple way of dealing with a notice of this sort. But, as I think may be assumed for the purposes of this appeal, if the person who gives the notice sees fit not to use one of those primary methods, but to send the notice through the post, not registered and not by recorded delivery, that will nevertheless be good notice, if in fact the letter is received by the person to whom the notice has to be given. But a person who chooses to use that method instead of one of the primary methods is taking the risk that, if the letter is indeed lost in the post, notice will not have been given.” - emphasis added 10. This passage was then cited with approval in Railtrack Plc v Gojra & Anor [1997] EWCA Civ 2863 and Wilson J (with whom Evans LJ agreed) said:- ” When, however, as here, notice is sent by ordinary post instead of by a primary method, it is served - and given - on such date, if any, as it is received.” 11. These two passages were then also cited with approval in Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573. 12. It is submitted that it is clear that if one of the primary methods are not used then notice will not have been given if the intended recipient never receives it. 13. The first two cases above involve the Landlord and Tenant Acts and not the Law of Property Act, while the last case, Blunden, did involve both Landlord and Tenant and the Law of Property Act. However, the important thing is that the requirements as to service of notices are the same in both acts, ie by leaving at the last known place of abode or sending by registered letter (Section 23, Landlord and Tenant Act 1927) and these cases revolved entirely around whether good service had been achieved. 14. It is submitted that these cases are directly relevant to the present case, and that (also considering the case of Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101 referred to above which was specifically concerned with notice being given under the Law of Property Act), as the Claimant did not use one of the primary methods available to it and the Defendant denies actually receiving any notice then, in fact, good service has not been accomplished. As a result of this the Claimant has no standing before the Court. 15. Further, it is submitted that the Notice is, in any case, invalid as it describes a non-existent or incorrect document. The Notice of Assignment states:- “We hereby give you notice that ... by an Assignment dated 21 Oct 2008” However, the alleged document of assignment that has been disclosed by the Claimant is clearly dated 28th March 2008. It follows that the Notice is not referring to this document and so is an invalid notice of an assignment. 16. In paragraph 21 of the Reply to Defence the Claimant also states that the deed was signed on 28th March 2008 so it appears that this is common ground between the parties. The Claimant then offers no argument or further evidence that there ever was a document of assignment dated 21st October 2008 and so it is submitted that the lack of a document of assignment dated 21st October 2008 is fatal to the Claimant's claim. 17. This is confirmed in W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169 where Denning LJ confirmed that a Notice of Assignment was invalid if it was inaccurate in any way:- ”Section 136(1) of the Law of Property Act, 1925 , shows that the written notice of the assignment is an essential part of the transfer of title to the debt, and the requirements of the sub-section must be strictly complied with. I think that the notice itself must be strictly accurate, in particular, in regard to the date which is given for the assignment. Even though it is only one day out, as in this case, the notice of assignment is bad.” 18. Further, if the Claimant should still contend that the Assignment did, in fact, take place in October 2008 then it is submitted that the notice is still not sufficient. The mere fact of giving a notice does not, of itself, create an assignment and there must be an actual written assignment given under the hand of the assignor in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim. The Claimant has offered no evidence to show that there is such a written assignment dated 21st October 2008. 19. Finally, the Claimant has disclosed the title page and the signature page of an alleged agreement of assignment. Without sight of the actual terms of the agreement, it is impossible to tell from what has been disclosed whether or not it is an absolute assignment. It is submitted that the Claimant has not complied with the Order to disclose the entire document of assignment. 20. In paragraph 24 of the Reply to Defence, the Claimant contends that it should not disclose the agreement as the information is commercially sensitive. It is submitted that the Claimant cannot demonstrate that this does represent an absolute assignment without disclosing the terms of the Agreement. It is submitted that it would be entirely reasonable for the Claimant to provide the whole agreement while redacting any information, such as consideration, which would be commercially sensitive. It is further submitted that this is also required to demonstrate how the Defendant's details can be included in a Schedule to the Agreement of 28th March yet the Claimant contends that the assignment did not take place until October of that year. The Default Notice 21. As stated in paragraph 7 of the Defence, exhibit [put in here the exhibit number], the alleged default notice served under s87 (1) of the Consumer Credit Act 1974 (“the Act”), failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (“the Regulations”) 22. Section 2(5)(a) of the Regulations requires that the lettering in the statement shall be afforded more prominence than any other lettering in the notice. Section 2(5)(b) then goes on to state that any words shown underlined in the Schedule to the Regulations should be afforded yet more prominence. 23. So, it is clear that the whole of the relevant statement must be afforded more prominence than any other lettering in any event and that even greater prominence must be given to certain parts of those statements. 24. It is submitted that the alleged default notice fails to do this and that the notice does not comply with Section 2(5)(a) and (b) and so is a bad notice. 25. Under para 4 of Schedule 2 of the Regulations, the notice is required to contain the following statement:- “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”. By the action of Section 2(5)(a) of the Regulations, the whole of this statement should be afforded more prominence than any other lettering in the notice and by the action of Section 2(5)(b) the words ”before the date shown” should be given even more prominence than the already prominent whole statement. 26. It is clear from the Default Notice that, while the words ”before the date shown” have indeed been given more prominence, that the whole of the statement has not been given the required extra prominence. It appears that the Claimant, while they have complied with section Section 2(5)(b) have failed to comply with Section 2(5)(a) of the Regulations. 27. This is repeated with the requirement under para 5 of Schedule 2 with regard to the following statement:- “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 [OR A SURETY]” The Claimant has failed to comply with Section 2(5)(a) in that the whole statement has not been given more prominence. 28. This is further repeated with the requirement under para 9 with regard to the following statement:- “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 OR ANY SURETY MORE TIME” In this case, the Claimant has totally ignored the requirement for giving extra prominence to this statement. 29. Finally, Section 2(2)© of the Regulations require that the notice shall contain “statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule“. 30. Para 10 of Schedule 2 requires a statement in the following form:- “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” 31. However, the notice fails to contain this statement. Although it does contain a statement that is similar it is clearly not in the form specified by para 10. The notice therefore fails to meet the requirements of Section 2(2)© of the Regulations and so the notice is bad. The relevant statement given in the notice is:- “If you are not sure what to do, you should get help as soon as possible. Free independent advice and assistance for those in financial difficulties is available from the following:“ This statement further fails to comply with Section 2(5)(a) in that the whole statement has not been given more prominence. 32. The Court's attention is drawn to the opening part of section 88(1) of the Act, which states 88. Contents and effect of default notice. - (1) The default notice must be in the prescribed form....... The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue. 33. It is noted that the regulations do not allow any variation in the form of these statements and therefore it is submitted that where the statements are not as laid down in the Regulations the default notice is rendered invalid as a consequence. This notice fails to comply with sections 2(2)©, 2(5)(a) and 2(5)(b) of the Regulations and so is bad. 34. As a result, the Creditor is barred from enforcing the agreement. This was confirmed in Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) where it was held that no enforcement can be attempted in dependence on a bad default notice:- [75] The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. Sums Claimed 35. As stated in paragraph 29 of the Defence, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty and so in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”). 36. It is noted that in paragraph 26 of the Reply to Defence, the Claimant contends that it is for the Defendant to prove its' case. It is submitted that the Claimant is mistaken in its' belief. 37. It is for the Claimant to demonstrate that the account charges are, in fact, lawfully owing. These account charges are only lawfully owing if they are not a penalty under common law. It is submitted that the obligation lies with the Claimant to show that they reflect any actual losses sustained or that they reflect realistically any actual costs incurred. If they cannot do this then, it is submitted, they have not proved their case. 38. In relation to the UTCCR, the account charges are only lawfully owing if the term of the Agreement is fair within the meaning of the UTCCR as otherwise the term is not binding on the defendant, Section 8(1) UTCCR. It is submitted that it is the obligation of the Claimant to demonstrate that the term is fair within the meaning of the UTCCR not for the Defendant to prove otherwise. 39. In case the Claimant should attempt to advance the argument that this case is affected by the recent bank charges case, Office of Fair Trading (OFT) v Abbey National plc & Ors [2009] UKSC 6 , it should be noted that that case involved just bank current account overdraft charges and not credit card charges. No credit card issuer was involved in that case. 40. Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52. This ruling was not disturbed by the Abbey National case. 41. In paragraph 31 of the Defence, reference is made to the OFT report “Calculating Fair Default Charges in Credit Card Contracts”. This was included in case the Claimant should seek to rely on this document and attempt to advance an argument that a fee of £12 was fair. The OFT Report clearly states that this is not the case. 42. Finally, if the account charges are not lawfully owing then it is submitted that the contractual interest that has been added to those charges is also not lawfully owing as the charges should never have been made in the first place. 43. In light of the above it is denied that I am indebted to the Claimant as alleged or at all. Statement of Truth I, xxxxx, Defendant believe that the facts stated in this Skeleton Argument are true Signed ......................... ........... Dated: th February 2011

ok sev, I've done something for you here. It's rather a long post so have a careful read of it and make sure you understand what is being said. I would suggest that while it's a good idea to send it to the court in plenty of time that it might be worthwhile leaving it to the last moment to send it to the other side - they do that sort of thing to defendants all the time. However, others might have different views on this.

It's not the judge's job to tell anyone what they should have pleaded in order to win. The useful thing about these threads, I would suggest, is that it will deter people from attempting to use the repudiation argument in court.

I would suggest that you put together a skeleton argument that explains in more detail the issues around assignment and the default notice. If you like, I'll try and put some ideas together over the weekend - around watching the grand prix. You should then serve it on the other side and the court at least a week before the hearing date.

I'll have a read tonight over a glass of wine

What did they actaully say in their reply to the defence?

safari, Your understanding is correct. Probably the reason why the ombudsman said 12 years is that they can come after the principle sum for upto 12 years but, as you correctly say, they can only claim any arrears of interest for 6 years.

Sorry, I don't understand why you are saying they are being intransigent and vexatious? They are entitled to demand the full amount. However, I really would suggest that they won't actually present a bankruptcy petition and that the solicitors really are waiting to hear from their client as to what sort of payment arrangements they would accept.

Have a read of subsection (2)(b) An overdraft is repayable on demand. Hence, it is caught by subsection (2)(b) and so section 6 does not apply. In my opinion

Hi Tingy, Just one very minor point. I don't want to distract from the advice being given here. I've noticed that you've said this a few times about the DPA. This is true - sort of, however it is true of ALL Uk laws. As the HRA says:- So, the DPA didn't actually become an ''integral'' part of the HRA but it must, like all other UK laws, be given effect, as far as possible, in a way which is compatible with the HRA. Whta this means is that, as much as possible, laws must comply with the HRA. However, the courts decide how much it is necessary that any particular law does so bacause the section says ''so far as is possible''. On the other hand, there are issues connected with the DPA that have actually been enhanced by the HRA. I'm sure you've heard of the term ''super injunction'' - google it if you haven't - that not only prevents media repoting on things but they're not even allowed to say that they have been prevented reporting something. Well, this has largely been driven by the HRA. So, overall, it's not quite as simple as saying that one act became an integral part of another. Also, you've mentioned a couple of times about the HRA 2000. Well, actually it's the HRA 1998. Yes, most of it didn't come into force until 200 but it's still refered to as the HRA 1998. It's the same with the CCA 2006. Important parts of that didn't come into effect until 2007 but it's still referred to as the CCA 2006. Just small points really and I didn't want to distract from the advice you're giving here.

To be honest, I would continue with your present policy. Also, if you do not contact them, then if they do try to get a CCJ against you in the future then you can plausibly deny that you have received any notice of assignment from them and that is a very strong defence. I really would suggest that the fact it was just sent by ordinary post is their means of getting you to contact them and they have no real desire to present a bankruptcy petition. You will notice that there are other threads here where people have actaully had a SD served on them personally. In my case, the SD was sent by recorded delivery so I knew they were serious.

If you look at the terms is says that the apr is 13.9 for purchases, 15.7 for caseh advances and a balance transfer rate of 9.9. Now, if you have any evidence that those rates were not being applied when you opened your account, it follows that these are not the terms from your account. It was this that won the case for Harrison I mentioned above

They've actually got it slightly wrong. The insolvency rules do not say that you must have lived there for six months. What they actually say is that the court you present it to is the one nearest to where you have been living for the greater part of the last 6 months. So, once you have been living at your new address for at least 3 months then you will satisfy this rule as by then you will have been living longer at the new address than the old address in the latest 6 month period. Hopefully that makes sense to you, but if not just shout and I'll try to make it a bit clearer.

payback, No one has ever argued that overdrafts aren't covered by the CCA - so again I'm a bit confused why you're saying this. With regard to the determination, from what you say, you appear to have got things the wrong way round. It was from that date that they could have the exception from the part V requirements. Banks do not have to provide a signed agreement with regard to an overdraft as long as they do comply with the terms of the Determination

cecil, The OP has, I would suggest, had his initial questions answered. however, a lot of people come and read these threads but never ever register or post anything and can take things that they read as gospel. In that light I do have some issues with your post. I really would suggest that your fair opinion is misleading when you use the phrase ''as for the DNs, most agree that...'' I was merely saying that your 'most' were - in my opinion - a small minority. Also that - this time not my opinion but fact - that this argument has never been successfully used in court and, despite your assertion that:- Well someone like pt2537 has a different take on it:- http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices&p=3157631&viewfull=1#post3157631 I would suggest that it's not down to cases not being properly argued but more the fact that there is no basis in law for this argument. Moving on to repudiation, May I ask, ''well accepted'' by who? I would suggest that there are a number of people on this site that half understand things and push these views and then there are a number of very experienced and qualified members who really do know what they are talking about and have shown this argument to have no basis. Of course you are entitled to your opinion, I just have problems when you say things like ''most agree that..'' or ''well accepted..'' where, from my experience, this isn't the case. Far from it going over my head, I would suggest that I do have an understanding of the issues. I have successfully defended a court claim based on repudiation. This wasn't consumer credit, it was to do with a contract that my company had been involved with. Well, as you say to me above, ''Duuhrr'' who does the repudiating first? The debtor repudiates the contract by not making the required payments. Now you may not be interested in my opinion. I've never met you and I wouldn't know you from Adam. But I have met pt2537 and so I do know why people listen to him. For example:- http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices&p=3157641&viewfull=1#post3157641 and also here, for example:- Finally, moving on to your point:- I would suggest that that is precisely the point. As a result, even if one could argue that the creditor had repudiated the agreement, then there is no sanction or remedy available to the debtor:-

I really don't understand the point that is being made here. You are simply describing what the exceptions are. In the case of an overdraft there is no need for a signed agreement but they merely need to inform you of the overdraft limit and the interest rate. The determination from the Director of Fair Trading, the predecessor to the OFT, just says that banks can do this. The link that you are looking for Bazooka is a case called coutts v sebestyen:- http://www.bailii.org/ew/cases/EWCA/Civ/2005/473.html and there was a cag discussion on this topic here post #6:- http://www.consumeractiongroup.co.uk/forum/showthread.php?31515-CCAs-and-overdrafts&p=1269185&viewfull=1#post1269185