Thanks again, I will slot your quote in and change the date as I need to fax it off today! I just wanted something to add re: the default notice so thanks again for your prompt reply.

Many thanks BRW, In fact they discontinued but the Judge allowed me to file my counterclaim so I wanted to add something about fresh proceedings and issuing new default notices. I was going to put something like this! The Claimant admits that the Default Notice is invalid thus terminating any contract with the Defendant. It is the intention for the Claimant to issue fresh proceedings and to issue a new Default Notice However as there is no contract between both parties due to the invalid Default Notices the Defendant would ask the Court to strike out any future claim to issue fresh proceedings and the issue of new Default Notices in the future. As this could be seen as an abuse of process. I have looked cannot find a termination letter but in their Particulars of claim they do state that The Claimant therefore claims the balance due under the agreement. I understand what you are saying but how could I use it to put in my counterclaim to my advantage!

Many thanks Andy

Thanks BRW, The problem is they discontinued but intend to issue fresh proceedings and new default notices. They have admited that the reason they discontinued was that the Default Notice was technically inaccurate! So could the fact that they have admited the Default Notice is invalid be enough to terminate any contract between both parties even though it has not gone through the Court.

If the Claimant discontinues because they new the Default Notice was invalid could they issue fresh procedings and issue a new Default Notice.

bump

Many thanks Tifo, I have added this to my Counterclaim these Finance companies need to comply to the Law and not what they think is right! Thanks again

Does anyone know if there is a law that allows finance companies to process our data to the CREDIT REFERENCE AGENCIES as in a defence to my counterclaim one does state that they are REQUIRED to provide cra's with accurate information. The problem being is that if you dispute a credit agreement with your finance company how can they be sure the data they process and pass over to the cra's is accurrate! The data protection act states that the data should be processed fairly or accurately. So if there is a problem which is found further down the line with agreements or default notices etc... It means the finance companies have unlawfully processed your data. It seems unfair that the data is too easy to be processed and added to the cra's lists which then affects your credit rating giving the finance companies a big advantage leaving the defendant's disputing the agreements etc.. disadvantage surley the way out of this is for the courts to decide if the agreements are right or wrong and only then allow the finance companies to publicly display the data on the cra's lists.

Thanks 42man, I cannot see anything on the thread I must be going blind! But I know I have come across defences with detailed counterclaims but now when I need one I cannot find any! Just need to find one that I could adapt to my own circumstances. Regards

Hi, Has anyone come across a good counter claim for harrassment and data protection. regards Mberman

In the terms it states that if you go over your credit limit they will charge £16. So they have added the £16 to the balance owing in the Default Notice.

HI, If a creditor states that a charge was added lawfully to the Default Notice because it was in the terms and conditions, would this be correct. Regards

I too would like to know about the interest rates and is there a formula to do a calculation to check it is correct?

West London

Many Thanks 42man I will call them next week

Hi, Does anyone know if there is a list of consumer credit solicitors or barristers Or can someone recommend any. I have a Trial date next month and feel I may need representation. Regards

Well done Viano and to Paul for all his hard work. I have the same agreement so hopefully it will turn out the same way! Now you can chill and put your feet up! 8) Mberman

Hi Viano, Thanks for that maybe someone will come along and confirm if thats the format to use for witness statements. And good luck for Wednesday Mberman

Hi Viano, Thanks but I need to know how to set out the Witness Statements or are you saying you just copied the defence! Regards Mberman

Hi Viano, I have a similar agreement as you and I am relieved to see you have been taken care of and I am now more confident that the alledged Application Form will get thrown out in yours and mine. I noticed Paul gave you a witness statement example is it possible for Paul or you to send me a copy as I am about to prepare mine. Good luck Mberman

Hi Guys, Just had email confirmation from someone at the Consumer Credit Act implementation team Department for Business, Enterprise and Regulatory Reform Bay 428 1 Victoria Street London SW1H 0ET 020 7215 0145 The change in s14(1) of the Consumer Credit Act 2006 (increasing from 7 to 14 days the minimum period for response to a default notice) was implemented from 1 October 2006 in SI 2006/1508 - the Consumer Credit Act 2006 (Commencement No 1) Order 2006. The change applies to all default notices served on or after that date, irrespective of when the agreement was made and when the breach occurred - Schedule 3 para 10 of the Consumer Credit Act 2006. If a default notice does not allow 14 days, it is not in compliance with s88 and so the creditor cannot take the steps in s87. The fact that the change to SI 1983/1561 post-dated 1 October 2006 does not matter. The date must be not less than 14 days (by virtue of s88) - but SI 1983/1561 (pre-amendment) required the date to be "no less than seven days" - and 14 days is not less than seven. So SI 2006/3094 - the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006 - was merely clarificatory.

ouch

Very confused! I have a default notice which was issued after 19th Dec 2006 and has only given me 13 days to remedy the default. I also have a trial window of mid October 2008. Does it mean that the new law take effect for me as you say it does not come into force untill the 1st Oct 2008! Also I found this while I was searching the net! It just seems one minute I think oh they cannot enforce the agreement with a dodgy Default Notice then I read somewhere That they can still enforce if the cca is enforceable and also I read that they can re issue a new Default notice! Is it possible for someone to clarify the position as this is driving me insane and also for people in a similar position. Here is what I Found: Accurate Default Notices are vital Introduction Businesses engaged in lending or hiring regulated by the Consumer Credit Act 1974 should be aware of a recent Court of Appeal case highlighting the potential pitfalls of creditors failing to ensure that their documentation complies with the regulations. In the vast majority of cases, before a lender or hirer can take action against a debtor or borrower, a default notice has to be served. The default notice has to comply with the Act and the relevant regulations (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993). If a default notice in the proper form is not served, the action cannot proceed. In this case*, the defendant hired a photocopier but failed to pay a quarterly instalment of its rent. The plaintiff served a default notice which substantially overstated the arrears which were then due. Despite this, the judge at first instance held that the default notice was valid and entered judgement for the plaintiff. Correct procedures must be adhered to On appeal, Lord Justice Kennedy held that the Act was enacted to protect consumers, most of whom were likely to be individuals. When contracting with a financial organisation, a consumer was bound to be at a disadvantage. The contract was likely to be in standard form and complex. His Lordship said that if it was said that a consumer had broken the terms of the agreement, the consumer needed to know precisely what had been done wrong and what was needed to put matters right. The lender has the ability and resources to do this and, if it does not do so accurately, it is only right that it should not take the next step. Under s88(1) of the Act there is a requirement that the lender should 'specify' not only the nature of the breach, but also what action is required to remedy it. In the context of this case, that meant specifying with reasonable accuracy what sum the hirer had to pay to remedy the breach. The Court went on to say that an error that could be described as minimal might be overlooked, but the substantial inaccuracy in this case rendered the default notice ineffective, so the appeal should be allowed. Tens, if not hundreds, of thousands of default notices are issued every day. This case illustrates how vitally important it is that any default notice is correct in form, as well as in substance. It is likely that the Court would take the same view with regard to the form and contents of regulated agreements. *Case reference Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998. ============================== (Consumer A notice under the Consumer Credit Act specifying an amount of arrears, and claiming default, had to specify the arrears accurately otherwise the customer would not properly know what to do to remedy the default. The notice was invalid.) ================================ 38. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim 39. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant 40. Notwithstanding point 39, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237) 41. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119 NOTES Amendment Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3. Date in force: 19 December 2006: see SI 2006/3094, reg 1. Para 6: words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3. Date in force: 19 December 2006: see SI 2006/3094, reg 1. taken from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) prior to that dates above it was only 7 days EXPLANATORY MEMORANDUM TO THE CONSUMER CREDIT (ENFORCEMENT, DEFAULT & TERMINATION NOTICES) (AMENDMENT) REGULATIONS 2006 2006 No. 3094 1. This explanatory memorandum has been prepared by the Department of Trade and Industry and is laid before Parliament by Command of Her Majesty. 2. Description 2.1. The Consumer Credit (Enforcement, Default and Termination Notices)(Amendment) Regulations 2006 (“the 2006 Regulations”) are intended to update the Consumer Credit (Enforcement, Default & Termination Notices) Regulations 1983 (“the 1983 Regulations”) to bring them into line with changes made by the Consumer Credit Act 2006 (“the 2006 Act”) that came into force on 1 October 2006. 2.2. At the moment lenders must give consumers at least seven days to respond to a default notice. The amendment increases this to fourteen days, although lenders can allow a longer time period if they wish. 3. Matters of special interest to the Joint Committee on Statutory Instruments 3.1. None 4. Legislative Background 4.1. Section 88 of the 1974 Act provides for the sending of default notices and allows regulations to be made specifying the form and content of these notices. The 1983 Regulations prescribe the form and content of these notices, including a minimum time within which a consumer should respond. 4.2. The 2006 Act amended the ‘74 Act to increase the seven day period to fourteen days and consequential changes are necessary to other pieces of legislation that state this time frame. 5. Extent 5.1. These Regulations extend to Northern Ireland. The responsibility for consumer credit regulation is transferred to Northern Ireland under the devolved settlement. However, as the Northern Ireland Assembly is currently suspended, it was agreed that the provisions of the 2006 Act would also apply to Northern Ireland 6. European Convention on Human Rights 6.1. As the instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required. 1 7. Policy background 7.1. The Consumer Credit White Paper of 2003 set out the Government Agenda for change in the consumer credit market. Various pieces of secondary legislation, standardising the way APR (Annual Percentage Rates) is calculated, the provision of key information on a product up front and the simplification of early settlement rules came into force in 2004. 7.2. The Consumer Credit Act 2006 continued the aim of enhancing consumer redress, improving the regulation of consumer credit businesses and ensuring that regulation is appropriate. 7.3. One perceived problem was that the minimum period of time that a consumer had to respond to a default notice was too short at 7 days. There was not enough time for a consumer to work out what is required and respond within such a short timeframe. As a result the 2006 Act increased the minimum period from 7 to 14 days. This came into effect through Commencement Order 2006 No. 1508 (C.52) on 1 October 2006. 7.4. This Statutory Instrument brings the 1983 regulations into line with the 2006 Act and needs to come into force as soon as possible as the amendment should have been made at the time of the Commencement Order. It will come into force on 19 December 2006. 8. Impact 8.1. Any impact was considered as part of the regulatory impact assessment for the Consumer Credit Bill published in November 2004. Default notices are discussed in sections 10, 44 and 47 of the impact assessment. As businesses already incur costs in respect of defaulters, the impact assessment concluded that a 14-day rather than a 7-day minimum period would not impose additional costs. 9. Contact 9.1. Amanda Eden at the Department of Trade and Industry Tel: 0207 215 2165 or e-mail: [email protected] 2 was increased to 14 days on the 1 Octobor 2006 under the new CCA 2006 1 October 2006 (CCD) Extension of period for consumers to respond to default notices, from 7 to 14 days (section 14(1)) 14 Default notices (1) In subsections (2) and (3) of section 88 of the 1974 Act (contents and effect of default notice) for “seven” wherever occurring substitute “14”. (2) In subsection (4) of that section after “it” insert “and any other prescribed matters relating to the agreement”. (3) After that subsection insert— “(4A) The default notice must also include a copy of the current default information sheet under section 86A.” Regards Mberman

Thanks Geoffmr1, I put in a Application Notice today to view the original cca and some other docs so hoping the Judge will order them to do this! At least then we know if they have it! The Judge gave an order for this to happen on another case of mine so I thought might as well try! Regards

Thanks Hopeful1 and robcag once i get my thread up if geoffmr1 does not mind I will post a link! Also pt2357 I just ordered a book and its called Consumer credit act 2006: A guide to the new law publisher the law society also contains a copy of the origional 1974 act. Do you think this will be any good! Regards